[HOME]

NEW YORK DIVORCE AND FAMILY LAW 

[SITE MAP]

ARTICLES  BY SUBJECT

Adoption

Grandparent Visitation and Non-Parent Visitation

Grounds For Divorce

International Child Abduction

Legal Fee Awards and Awards For Expenses

Litigation and Procedure

Marital Property

Retirement Benefits

Separate Property

Spousal Support

Uniform Child Custody Jurisdiction and Enforcement Act

[HOME]

[SITE MAP]

[ Home | News | Feedback | Search ]

Grounds For Divorce - Imprisonment

The Domestic Relations Law provides, in Section 170(3), that an action may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on the ground of the confinement of the defendant in prison for a period of three or more consecutive years after the marriage of the plaintiff and the defendant. Dom Rel L 170, subd.3

As originally enacted, Domestic Relations Law Section 170(3) was ambiguous and it may remain so despite a clarifying amendment. It is not clear from the language itself whether or not Section 170(3) refers to current imprisonment; that is, must the divorce be sought while the defendant is in prison rather than after his release. It is clear that there must be at least three years of confinement but it is not clear whether the action may be brought after the felon's release. If the "protective" purpose of this law is accepted, then it should make no difference that the divorce action is filed after the prisoner's release except that the general statute of limitations of five years applies. Dom Rel L 210

It has been held that where the defendant has not been confined in prison for a period of three years at the time suit is instituted, the action may not be maintained. Short v. Short, (1968) 57 Misc.2d 762, 293 NYS2d 590

In Cerami v. Cerami, (1978) 95 Misc.2d 840, 408 NYS2d 591, the defendant shot and killed his former supervisor. Before defendant was ordered committed to the Rochester Psychiatric Center in 1974, he was confined in local jails and in facilities operated by the State Dept. of Correctional Services between March 23, 1970 and August 1, 1974, for more than four consecutive years.

The Court held: 1) that the period of the husband's confinement between arrest and sentencing constituted confinement "in prison" for purposes of the statute, even though parts of this confinement were served in a state hospital after the determination that he was not competent to stand trial and 2) that the time during which he was incarcerated in the state prison and in the county jail (after the original judgment of conviction had been vacated by the Court of Appeals, and before he had been found not guilty by reason of insanity), constituted confinement "in prison" for purposes of the statute.

The Court concluded that the husband's more than four years of physical confinement between March 23, 1970 and August 1, 1974, included more than three consecutive years of confinement "in prison" and that the terms of the statute were satisfied.

The Court further held that even disregarding the period of defendant's "commitment to and confinement in Matteawan, plaintiff is entitled to a divorce on the basis of the period of over three consecutive years of confinement of the defendant between March 4, 1970 and August 1, 1974. The time which defendant was incarcerated in Auburn State Prison and in the Monroe County Jail after December 27, 1973, constituted time defendant was confined in prison within the meaning of Dom. Rel L 170(3). This statute, ... clearly is not limited in its application to the incarcerated spouse sentenced to a prescribed minimum period of imprisonment and incarcerated for a shorter statutory period

`pursuant to such sentencing.'"

Colascione v. Colascione, (1968) 57 Misc.2d 199, 291 NYS2d 559, held that "actual physical incarceration for the statutory period of three consecutive years gives rise to the right to a divorce," without more and is unaffected by a reversal of the conviction. See also Pergolizzi v. P ergolizzi, (1969) 59 Misc.2d 1027, 301 NYS2d 366, for the proposition that a spouse's past sentencing incarceration in a Dept. of Correction facility is to be counted as part of the requisite three year period entitling the other spouse to a divorce.

The fact that after serving three or more years the conviction was reversed and a new trial granted does not preclude the granting of a divorce on the imprisonment ground. Colascione v. Colascione, (1968) 57 Misc.2d 199, 291 NYS2d 559 However, where no prison time is served because sentence is suspended or the offender is placed on probation, there appears to be no "confinement in prison" and hence no basis for divorce on the grounds of imprisonment.

Proof of Confinement in Prison

In an action for divorce based upon the confinement of the defendant in prison for a period of three or more consecutive years after the marriage of the plaintiff and the defendant, it is of course necessary to show that the defendant has been in prison for three or more years. Short v. Short (1968) 57 Misc 2d 762, 293 NYS2d 590. Proof of mere sentencing to prison for a period to exceed three years is not sufficient. Short v. Short, supra.