Chapter 26 CONVERSION DIVORCES
Jurisdiction | New York |
Chapter Twenty-Six
Conversion Divorces
I. Conversion Divorce: Importance of Parties Living Separate and Apart
N.Y. Domestic Relations Law § 170(6) (DRL) sets forth the criteria for a conversion divorce, the closest thing to a no-fault divorce in New York State prior to October 12, 2010, the effective date of DRL § 170(7),3746 New York's true no-fault divorce law. DRL § 170(6) states:
The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. 3747 In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement of separation and (d) the date of this subscription and acknowledgment or proof of such agreement of separation.
The fundamental principle in evaluating the validity of a separation agreement vis-à-vis a conversion divorce pursuant to DRL § 170(6) is that in the absence of the parties' actual separation at the time of execution of a separation agreement or immediately thereafter, the separation agreement is void ab initio3748 and may not provide the basis for a conversion divorce. The "vital and operative" fact in DRL § 170(6) conversion divorces is not the separation agreement, whose function is merely to authenticate the fact of separation, but the actual living apart of the parties pursuant to the separation agreement.3749 It is the physical separation, rather than the writing, which constitutes the actual basis of the cause. The agreement is simply intended as evidence of the authenticity and reality of the separation.3750
In In re Estate of Wilson, the Court of Appeals stated:3751
Common experience teaches that, when marital property arrangements are made part of such an agreement, the separation is not merely the occasion but the underlying raison d'être for the dispositions. Once the partners to the union renounce their incipient state of separation in favor of maintaining their coupled status, absent any indication to the contrary, it is to be assumed that, writing on a clean slate, they intended that all vestiges of the agreement that was to serve to memorialize their separation also fall.
[T]he force of this principle is so pervasive that it applies whether the separation agreement is one rendered void ab initio by reason of the parties' failure to live separate and apart or whether it is one abandoned later on because the spouses have effected a reconciliation.
A brief period of cohabitation or "mere" cohabitation subsequent to the execution of a separation agreement is insufficient to vitiate the agreement; it must be shown that such cohabitation was intended to be part of a resumption of marital relations and to abandon the agreement.3752 This rule is grounded upon the presumed intent of the parties and should not be applied when a contrary intent is clear.3753
The parties, in Martin v. Martin,3754 executed a separation agreement in 2005 that provided for the distribution of their assets. Nevertheless, they continued to live together until 2015, when the wife commenced an action for divorce. The husband's counterclaims included a declaration that the agreement was void. The Appellate Division upheld the Supreme Court that the agreement was void because the parties did not actually separate at the time of execution of the agreement or immediately thereafter. Rather, they lived together for a decade after entering into the agreement and, although more than "mere cohabitation" was required to render the agreement void, they also filed joint tax returns, maintained a joint checking account and had joint credit cards.3755 Significantly, the parties lived as a married couple and that the wife handled their financial affairs throughout that period, as well as that they only executed the separation agreement so that the wife could take out more college loans for her daughters from a previous marriage. In the absence of a valid separation agreement, Supreme Court had substantial discretion in determining the fair and equitable distribution of marital property under the circumstances.
A separation agreement executed at a time when the parties were living together may be found valid where an immediate separation was contemplated and in fact occurred or where the actual separation was sufficiently immediate to the execution of the agreement.3756 A clause explicitly stating that the parties shall live separate and apart pursuant to the agreement is not a prerequisite to a valid agreement of separation pursuant to DRL § 170(6).3757 An agreement indicating no intent to live separate and apart, which further states that its purpose is to resolve issues pendente lite, may not serve as the basis of a conversion divorce.3758
An agreement may not induce, rather than merely recognize, the disruption of a family unit.3759 A purported separation agreement executed as part of a scheme to defraud others may not serve as a basis for a conversion divorce.3760
In Meisel v. Meisel,3761 the "Postnuptial Agreement" qualified as a separation agreement for purposes of a conversion divorce pursuant to DRL § 170(6), although the parties did not separate until some seven months after the agreement was signed.
The requirement that parties live separate and apart does not apply where a spouse proceeds for divorce on another ground, such as, the irretrievable breakdown of the marriage, under DRL § 170(7).
The separation agreement in Burger v. Burger3762 had resolved all financial and ancillary issues. The wife could properly proceed for a divorce, under § 170(7), notwithstanding that the parties had not lived separate and apart under the agreement for at least one year because § 170(7) only provides a statement under oath that the marital relationship has "broken down irretrievably for a period of at least six months." Non-compliance with/or enforcement of a separation agreement is not an element of § 170(7) and a court is not authorized to insert requirements.
II. Substantial Compliance With the Terms of the Agreement Does Not Mean Absolute Compliance, Although It Must Relate to the Essential Duties
Aside from the procedural formalities about the form of the separation agreement, the party seeking the divorce on this ground must allege substantial compliance with the provisions in the agreement. Substantial compliance does not mean absolute or literal compliance.3763 Compliance must address the heart of the agreement,3764 such as spousal maintenance and child support3765 and marital property.3766 Although substantial compliance does not mean absolute compliance, failure to comply with such major provisions of a separation agreement as maintenance and support obligations may at times preclude a finding of substantial compliance with that agreement.3767 Non-payment of maintenance is not an absolute bar to entitlement to a conversion divorce. Courts will examine the amounts and the duration of the delinquency,3768 as well as the subsequent payment of arrears. Rubin v. Rubin3769 permitted a conversion divorce notwithstanding the appellant's delinquency in making the required alimony payments for several years, because he had complied therewith for eight years prior to commencement of the action. An application for a reduction in payments required during periods of financial difficulty does constitute noncompliance.3770
The essence of the substantial compliance is not the living apart for more than a year but rather compliance with the terms of the agreement. In Berman v. Berman,3771 the plaintiff was denied a summary conversion divorce. The defendant alleged that the plaintiff had disguised his income so as to defeat his support obligation and that he was $92,000 in arrears, which amounted to substantial noncompliance with the "heart and essence" of the separation agreement. The plaintiff did not dispute the allegations. He argued his entitlement to the divorce based on having lived separate and apart pursuant to an agreement, which is the key requirement for a conversion divorce.
The Appellate Division underscored that a conversion divorce requires satisfaction of two distinct steps: separation and substantial compliance, a clear statutory requirement which manifests a legislative purpose to insure compliance with the essentials and major undertakings of the agreement. Berman observed that in Christian v. Christian,3772 the Court of Appeals held that "substantial compliance" requires more than mere living separate...
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