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Wednesday, March 21, 2018

Sworn Testimony That Marriage Irretrievably Broken Down for A Period Of At Least Six Months Sufficient to Establish Cause of Action for Divorce Under Domestic Relations Law § 170(7)

            In Johnston v Johnston, --- N.Y.S.3d ----, 2017 WL 6519486, 2017 N.Y. Slip Op. 08923 (3d Dept., 2017) Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) were married in September 1989 and had two children (born in 1991 and 1995). In April 2014, the wife commenced the action.

            The Appellate Division held that the husband’s sworn testimony that his marriage to the wife had irretrievably broken down for a period of at least six months was sufficient to establish, as a matter of law, his cause of action for divorce pursuant to Domestic Relations Law § 170(7). Having determined that the husband established irretrievable breakdown pursuant to Domestic Relations Law § 170(7), Supreme Court was under no obligation to grant the wife a judgment of divorce on the ground of adultery or constructive abandonment (see Hoffer–Adou v. Adou, 121 A.D.3d at 619, 997 N.Y.S.2d 7)

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