Now what is she supposed to do? Normally its the non-cheating spouse – the cheatee – who files for divorce. But what happens when the cheater files for divorce. The Second Department’s decision on Tuesday in Kaplan v Kaplan, 2007 NY Slip Op 09734 demonstrates that when the cheater files for divorce, the grounds for divorce may be lacking.
In that case, during a marital counseling session, the wife admitted to a long term extramarital affair. Thereafter, the husband moved out of the marital residence. More than one year later, the plaintiff-wife commenced the action for divorce, after 17 years of marriage, on the grounds of abandonment and cruel and inhuman treatment. The defendant-husband moved for summary judgment dismissing the action. The Supreme Court granted the husband’s motion, and the Second Department affirmed.
The Second Department noted that in order to be granted a divorce on the grounds of abandonment, a plaintiff must demonstrate that the defendant unjustifiably and without the plaintiff’s consent abandoned the plaintiff for a period of one or more years (see Domestic Relations Law § 170). Here, The Court found that the husband was justified in leaving the marital residence because of his wife’s extramarital affair. Thus, there was no abandonment, and the wife was not entitled to the divorce on this ground.
With respect to cruel and inhuman treatment the Court noted that the marriage was one of long duration, and thus, a high degree of proof was required for termination on the ground of cruel and inhuman treatment. And here the Court found that the plaintiff-wife’s allegations of embarrassment and discomfort were insufficient to establish cruel and inhuman treatment.
So, I guess it is back to marriage counseling for this couple?