## Facts

- Christine L. Palermo (wife) and Joseph A. Palermo (husband) married in 1977.
- The wife moved out of the marital residence in September 2000, and the parties did not resume living together.
- In 2001, the wife filed a divorce action on fault grounds (cruel and inhuman treatment); after a trial, a jury returned a verdict of no cause of action, and no divorce was granted.
- After New York enacted Domestic Relations Law (DRL) § 170(7) (irretrievable breakdown/no-fault), the wife filed a new verified divorce complaint in February 2011 alleging the marital relationship had broken down for more than six months.
- The husband answered denying that the marriage had irretrievably broken down and asserted defenses including statute of limitations, res judicata, and failure to state a cause of action.
- The husband moved to dismiss and argued that, at minimum, he was entitled to a trial to test whether the marriage was “irretrievably broken.”
- The wife cross-moved for leave to amend/replead to track DRL § 170(7)’s “irretrievably broken for a period of at least six months” language.

## Issues

1. Does DRL § 170(7) require an evidentiary hearing or trial on whether the marriage is “irretrievably broken” when one spouse submits a sworn statement meeting the statute’s six-month requirement?
2. Are the wife’s DRL § 170(7) claims barred by defenses such as res judicata or statute of limitations based on the parties’ earlier, unsuccessful fault-based divorce action?

## Decision

- The court denied the husband’s motion to dismiss.
- The court held that a spouse’s verified allegation that the marriage has been irretrievably broken for at least six months is sufficient to plead the DRL § 170(7) ground; the statute does not create a right to litigate the truth of that sworn allegation through a grounds trial.
- The court reasoned that DRL § 170(7)’s text conditions entry of judgment on resolving or providing for equitable distribution, maintenance, and child-related issues, but it does not require fact-finding proceedings on “irretrievable breakdown,” and the court would not add that requirement.
- The court rejected the husband’s res judicata and limitations defenses because the prior action involved different grounds and occurred before DRL § 170(7) existed; the new claim rested on a new statutory basis for divorce.
- The court granted the wife leave to amend/replead to conform the complaint’s language to DRL § 170(7).

## Legal Principles

- Under DRL § 170(7), a properly sworn statement by a spouse that the marriage has been irretrievably broken for at least six months satisfies the no-fault ground; the statute does not require a trial on that allegation.
- When the Legislature omits a hearing or trial requirement from a divorce ground, courts should not add one by interpretation.
- A prior unsuccessful fault-based divorce action does not automatically bar a later action based on a subsequently enacted, different statutory ground; claim preclusion depends on whether the later claim could have been brought earlier and is the same cause of action.
- In applying DRL § 170(7), the court’s role is to ensure statutory prerequisites for entry of judgment are met (resolution/provision for financial and child-related matters), not to adjudicate whether a spouse’s subjective determination that the marriage is over is “true.”

## Conclusion

Palermo v. Palermo holds that New York’s no-fault divorce ground in DRL § 170(7) is established by one spouse’s sworn allegation of an irretrievable breakdown lasting at least six months, and the other spouse is not entitled to a trial to contest that assertion; the court therefore denied dismissal, rejected res judicata and limitations defenses tied to an earlier fault case, and allowed the wife to amend her pleadings to track the statutory language.


Palermo v. Palermo, 35 Misc.3d 1211(A) (2011)