Lawyers Manual - Unified Court System

226 Emily Ruben
Grounds
When a battered woman comes to an attorney’s office seeking a divorce, one
of the first decisions that needs to be made is what ground to use. The choices
include: cruel and inhuman treatment, abandonment of at least a year’s duration,
confinement of the defendant in prison for three or more years, adultery, or living
apart pursuant to a valid separation agreement or judgment of separation for a
year or more. 3
To obtain a divorce on the ground of cruel and inhuman treatment, the client
must prove that her husband’s treatment of her so endangers her physical and
mental well-being that cohabitation with him is “unsafe or improper.” 4 Generally,
the complaint should clearly allege a course of conduct over a period of time
and, where possible, recite the specific times, dates and places of the conduct.
It should detail physical or psychological harm suffered that required medical
treatment or caused emotional or physical pain and suffering. It should describe
any history of police intervention and list any orders of protection obtained with
the date, court and docket number. Finally, when the conduct complained of
occurred in the presence of others, especially the parties’ children, that should
be described as well. 5
The verified complaint will have to include more than one “serious” instance
of cruelty. 6 Also, the Court of Appeals has mandated that a distinction be made
between long and short term marriages, requiring a substantially higher standard
of misconduct in marriages of long duration. 7
Although cruel and inhuman treatment seems the most obvious ground to
use in a complaint for a victim of domestic violence, it is not always the right
one or the only one to use. It is not at all uncommon for such a client to prefer a
more innocuous ground (abandonment or constructive abandonment) 8 because
she fears that allegations of cruel and inhuman treatment might incite further
violence. On the other hand, a cruel and inhuman treatment cause of action could
positively affect a custody battle and could make the plaintiff more sympathetic
in the eyes of the court. Accordingly, the implications of each ground should be
carefully reviewed with the client. If a decision is made not to allege cruel and
inhuman treatment, the client is not precluded from later moving for an order of
protection in the divorce proceeding or from amending her complaint to include
this cause of action if the situation changes. On the other hand, if an attorney
plans to move for an order of protection for the client in Supreme Court, a welldeveloped
and detailed cruel and inhuman treatment cause of action in a
complaint can certainly buttress such a motion.