Lawyers Manual - Unified Court System

15
Representing Victims of Domestic Violence
in Supreme Court Matrimonial Actions
by Emily Ruben
One of the most valuable services an attorney can provide a married victim of
domestic violence is a divorce. Psychologically, after a divorce she is no
longer her batterer’s property, no longer under his control. A divorce provides
closure, a chance for a new start, a chance to get on with her life. Pragmatically,
a divorce often resolves the economic issues of the marriage, such as the
distribution of marital property and debt, child support and maintenance. It will
allow a woman to take stock of what she has and to go forward. When the
parties have minor children, final orders of custody and visitation are also
included in the divorce judgment. 1 The court will also include final orders of
protection in a divorce judgment or a decision denying a divorce. 2
Divorce law in New York State is different from most other states for two
reasons. First, family law issues are adjudicated in two different courts, which
creates a uniquely bifurcated system. The Family Court is a court of limited
jurisdiction, and the judges of that court do not have the power to determine the
status of a marriage. A divorce proceeding can only be brought in Supreme Court.
Both courts have jurisdiction to determine the ancillary issues of a marriage
(support, custody, etc.). Second, New York is one of the few remaining states
that still requires fault grounds for a divorce. A divorce based on irreconcilable
differences does not exist in New York, and the only way to obtain a “no-fault”
divorce is if both parties enter into a written, properly-authenticated agreement
and abide by the agreement for at least a year. For victims of domestic violence,
a separation agreement is often not a viable option.