A.F. v. S.F. 3/23/2007 N.Y.L.J. 25, (col. 1) (Sup. Ct. New York County)

Husband, on eve of fault trial, attempted to discontinue the entire divorce action since he could not prove his entitlement to a divorce. We argued on behalf of the wife that prejudice would arise to her and the children unless the discontinuance was conditioned upon the Court retaining jurisdiction to grant all of the relief sought by the wife in her answer. The Court adopted the wife's position.

Merrick v. Merrick, 165 Misc.2d 180 (Sup. Ct. New York County 1995), aff'd 223 A.D.2d 373 (1st Dep't 1996)

Represented wife in action for a divorce, which the husband opposed. Court held that separate apartment into which husband had moved constituted marital residence from which subsequent exclusion of wife could provide basis of divorce on ground of abandonment and lockout of wife from separate apartment after period in which parties had lived as husband and wife despite maintaining separate residences entitled wife to divorce on ground of abandonment.

Hammer v. Hammer, 34 N.Y.2d 545 (1974)

Secured reversal of grant of divorce to husband both in the appellate court and in the Court of Appeals, which held that husband was not entitled to divorce on account of wife's alleged refusal to have sexual relations where it appeared that husband had consented to sexless relationship and had not requested renewal of relations with spouse. This remains the law on constructive abandonment today in New York, in which a spouse, if the other party opposes the divorce, still must prove fault.