## Facts

- Maria Reyes and Francisco Reyes married on June 20, 2000, while Francisco was incarcerated on a 1999 federal drug-conspiracy sentence of 11 years and 3 months.
- Francisco’s incarceration began before the marriage and continued throughout the marriage.
- Maria commenced a divorce action on November 29, 2007, relying on New York Domestic Relations Law (DRL) § 170(3) (imprisonment for three or more consecutive years).
- Francisco was served with the summons, complaint, and motion papers but did not respond.
- After completing his sentence in 2008, Francisco was deported to the Dominican Republic.
- In processing the matter as uncontested, a referee rejected Maria’s submissions on the ground that DRL § 170(3) was unavailable because Francisco’s incarceration did not begin after the marriage.

## Issues

1. Whether DRL § 170(3) allows a divorce when the defendant’s imprisonment began before the marriage but the statutory period of three or more consecutive years of imprisonment occurred after the marriage.
2. Whether DRL § 170(3) requires proof of post-marriage marital “fault” by the incarcerated spouse.
3. Whether the plaintiff’s papers supported proceeding to judgment on the defendant’s default under DRL § 170(3).

## Decision

- The court rejected the referee’s conclusion that the complaint failed to state a cause of action under DRL § 170(3).
- The court held that DRL § 170(3) does not require that incarceration begin after the marriage, so long as the required period of confinement occurred after the marriage.
- The court held that DRL § 170(3) is not a fault-based ground and does not require proof of post-marriage misconduct.
- The court permitted the action to proceed and allowed the defendant’s default to be taken.

## Legal Principles

- DRL § 170(3) is satisfied when the defendant has been confined in prison for three or more consecutive years and the relevant period of imprisonment occurred after the marriage.
- The statute’s text does not impose a requirement of marital fault; meeting the statutory elements is sufficient.
- A divorce claim under DRL § 170(3) is not barred merely because incarceration commenced before the marriage, provided the statutory period of confinement occurred during the marriage and procedural requirements (including service) are met.
- On adequate proof of the statutory elements and proper service, a plaintiff may proceed to a default-based divorce under DRL § 170(3).

## Conclusion

The court held that the imprisonment ground in DRL § 170(3) does not depend on marital fault and does not require that incarceration start after the marriage; because the plaintiff established more than three consecutive years of confinement after the marriage and the defendant defaulted after service, the divorce action could proceed on default.


Reyes v. Reyes, 891 N.Y.S.2d 222 (Sup. Ct. Kings Cnty. 2009)