The Appellate Division, Third Department, held that an action that began as a fault-based matrimonial action before the enactment of New York’s no-fault statute can be maintained as a new action under the new law, according to the July 13, 2012 issue of The New York Law Journal. This is the first time that a plaintiff has been able to start a second case, though defendants had been allowed to take advantage of Domestic Relations Law §170(7). The new law creates a new ground under which a divorce action is based. a newly added “irretrievable marital breakdown”, is also known as no-fault.

Justice Leslie Stein of the Third Department stated, “because we do not agree that the complaint in the instant action alleges the same cause of action as the complaint in the first action, we find that this action should not have been dismissed”, as the court believes the cause of actions are different. He further goes on to state that as the new statute merely adds another ground for obtaining a divorce, “allowing a plaintiff to maintain the new action for a no-fault divorce will not circumvent the Legislature’s intent.”

Acting Supreme Court Justice Dollinger reasoned that this new statute was adopted in an effort to make the process of divorce easier, to “lessen the burden on both parties” and also eliminating the need for a trial on the issue of fault. He also believes that under §170(7) of the Domestic Relations Law, one party’s affirmation that a marriage is irretrievably broken is enough to end the union without trial.

Jayson Lutzky has been a practicing New York attorney for over 29 years. He is experienced in getting the best results for his clients who are facing family law issues such as divorces, child custody, and child support issues. If you are facing a family law issue, then contact our law office or visit our website at for a free initial consultation or call 1-800-660-LAWYER or 1-800-660-5299.