Scheu v. Vargas

2004 NY Slip Op 24178

• Court: New York Supreme Court, Rensselaer County
• Decided: May 28, 2004
• Status: Published

Opinion

Scheu v Vargas (2004 NY Slip Op 24178)

Scheu v Vargas

2004 NY Slip Op 24178 [4 Misc 3d 375]

May 28, 2004

Supreme Court, Rensselaer County

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, August 18, 2004

[*1]

Christina M. Scheu, Plaintiff, v Geraldo J. Vargas, Defendant.

Supreme Court, Rensselaer County, May 28, 2004

APPEARANCES OF COUNSEL

Christina M. Scheu, plaintiff pro se. Geraldo J. Vargas, defendant pro se.

{**4 Misc 3d at 375} OPINION OF THE COURT

George B. Ceresia, Jr., J.

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 Domestic Relations Law § 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 {**4 Misc 3d at 376}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 § 170]" (Schine v Schine, 31 NY2d 113, 116 [1972]). Otherwise, a divorce may be granted "only if fault is established" pursuant to one or more of the grounds set forth in Domestic Relations Law § 170 (Schine, 31 NY2d at 116). It stands to reason that the fault alleged as a basis for divorce must be [*2]attributable to the husband or the wife and that it must have occurred during the marriage.

Relevant to the instant action is Domestic Relations Law § 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.