What are some common defenses to a New York divorce action?

• Defense to a divorce based on abandonment

Constructive abandonment: If the refusal to engage in sexual relationships is justified in light of inappropriate conduct by the allegedly abandoned spouse, that spouse has no cause of action for a divorce on the ground of constructive abandonment.

In cases involving a lock-out or leaving of the marital residence, the defendant has a defense if the absence or lock-out was justified or that there is a lack of continuous abandonment. See Schine v Schine, 31 NY2d 113; Del Galdo v De Galdo, 51 AD2d 741.  Generally, an un-rescinded and valid separation agreement or a valid separation decree is a defense to a cause of action on abandonment.  See Butt v Butt, 50 AD2d 584 (2d Dept 1975).

• Defenses to a divorce based on cruel and inhuman treatment

Defenses to a divorce action upon the grounds of cruel and inhuman treatment include but are not limited to: (1) the five-year statute of limitation – the events occurred five years prior to the date of commencement of the action.  See Domestic Relations Law Section 210.

Under the present divorce statute, there is no recriminatory defense in a divorce action based upon cruel and inhuman treatment and the court will probably dismiss any such affirmative defense.  See Mante v Mante, 34 AD2d 134 (2d Dept 1970).  However, the defendant may show that misconduct by the plaintiff (the lure and attraction of another woman is a classic example) was the cause of his leaving the defendant's wife rather than the alleged cruel and inhuman treatment of the wife.  To that extent, the information is material and necessary to the defense of the action.  See Walden v Walden, 41 AD2d 664(2d Dept 1973); CPLR § 3126.

• Defense to a divorce based on the imprisonment of the defendant

Under Domestic Relation Law section 210, no action for divorce or separation may be maintained on a ground that arose more than five years before the date of the commencement of the action for divorce.

• Defenses to a divorce based on a separation agreement

Cohabitation after the execution of a written separation agreement is a defense to obtaining a divorce based on the separation agreement in New York.

However, cohabitation in and of itself is not sufficient to destroy a separation agreement unless there is proof that such cohabitation occurred with the intent to reconcile and abandon the separation agreement.  See Brody v Brody, 190 AD 806 (1st Dept 1920); Markowitz v Markowitz, 381 NYS2d 676 (1st Dept 1976).

• Defense to a divorce based on a separation decree

If the parties have failed to substantially perform all the terms and conditions of such decree or judgment the defendant may have a valid defense.

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