The authors of a recent column on no-fault divorce, “Unwrapping the 2012 ‘No Fault’ Package,” (NYLJ, July 30) state that, “We have found no appellate decisions addressing the question of whether ‘irretrievable breakdown,’ if disputed, is a triable issue of fact.” In fact, the Fourth Department has answered that question, albeit in a footnote: yes, a defendant is entitled to a trial on the issue of whether a marriage has irretrievably broken down for at least six months.
The Fourth Department reached that conclusion in Tuper v. Tuper, which was reported in the Law Journal on June 15. The wife in Tuper had filed for a no-fault divorce in February 2011. The husband responded by saying that the parties had been separated since 1996 and that her complaint was therefore barred by a five-year statute of limitations. The Fourth Department rejected that defense, holding that a cause of action for irretrievable breakdown accrues anew each day, so the statute of limitations will never expire.
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