SCHEU v. VARGAS (2004)

Plaintiff seeks a judgment of divorce based upon Defendant's confinement in prison for a period of three or more consecutive years after the marriage, pursuant to DRL § 170(3).   In support of her application she offers a copy of the verified complaint wherein she alleges that Defendant was incarcerated during August, 1999.   Plaintiff further alleges that the parties were married on April 26, 2000, approximately eight months after the commencement of Defendant's jail term.

 In New York, “[n]o-fault divorce applies only where there is a previous decree of separation or a written separation agreement, as required by [Domestic Relations Law section 170]” (Schine v. Schine, 31 N.Y.2d 113, 116, 335 N.Y.S.2d 58, 286 N.E.2d 449 [1972] ).  Otherwise, a divorce may be granted “only if fault is established” pursuant to one or more of the grounds set forth in DRL section 170 (Schine, 31 N.Y.2d at 116, 335 N.Y.S.2d 58, 286 N.E.2d 449).  It stands to reason that the fault alleged as a basis for divorce must be attributable to the husband or the wife and that it must have occurred during the marriage.

 Relevant to the instant action is DRL section 170(3) which sets forth as a ground for divorce “[t]he confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.”   Plaintiff alleges that the parties were married subsequent to the commencement of Defendant's confinement in prison.   Thus, at the time of the parties' marriage, Plaintiff was aware of Defendant's incarceration.   Absent any additional allegations that Defendant committed acts following the parties' marriage which constitute grounds for divorce, the mere fact that Defendant continued to be incarcerated for a period of three or more years after the marriage is insufficient to establish fault on his part.

Accordingly it is

ORDERED, that Plaintiff's application for divorce is hereby denied.

This shall constitute the Decision and Order of the Court.

GEORGE B. CERESIA, J.