Lawyers Manual - Unified Court System

Matrimonial Actions 227
On its face, Domestic Relations Law § 210 seems to prohibit actions for
divorce based on cruel and inhuman treatment that occurred more than five
years before the action was commenced. This often poses a real problem for a
victim of domestic violence who fled her batterer more than five years ago and
has had no contact with him since then. Fortunately, the courts have interpreted
the five year provision of Domestic Relations Law § 210 to be a statute of
limitations and not a condition precedent to bringing an action. 9 Because a
statute of limitations is an affirmative defense that the defendant must plead
and prove, if the defendant defaults, or appears and fails to plead the statute of
limitations affirmative defense, that defense is waived. 10
Accordingly, even if all instances of cruel and inhuman treatment occurred
more than five years ago, it is not frivolous to commence a divorce based on a
cruel and inhuman treatment cause of action. If the defendant defaults or appears
and fails to plead the statute of limitations affirmative defense, as is fairly
common in many cases where there has been a long separation and issues of
finances and custody have previously been resolved, the divorce will be granted.
The court or a clerk cannot reject a set of uncontested divorce papers because
the instances of cruelty alleged occurred more than five years prior to the
commencement of the action.
Interestingly, fleeing a marital residence because of violence can be used as
an affirmative defense to a batterer’s abandonment cause of action, even if it
occurred more than five years prior to the commencement of the action and
could not serve as the basis for a cause of action because the opposing side
raised the statute of limitations affirmative defense. 11
Once a decision has been made to commence a divorce action and a cause
or causes of action have been selected, an additional strategic decision must be
made. Should the defendant be served with a summons with notice or with a
summons and verified complaint? Because a summons with notice states only
the cause(s) of action and the ancillary relief requested, it is far less likely to
incite further violence or opposition than service of a fully developed complaint.
On the other hand, if the plan is to commence the divorce action simultaneously
with or shortly before moving by order to show cause for an order of protection,
it might be advisable to commence the action with a detailed complaint, which
would be an exhibit to the order to show cause.