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Wife Contends Divorce Papers Fail to State a Cause of Action

This case is being heard in the Special Term of the Supreme Court of the State of New York located in Kings County. The plaintiff in the case is Sidney Wechter and the defendant in the case is Florence Wechter. The plaintiff husband is seeking a divorce and the defendant wife is seeking an order to dismiss the complaint for failure to state a cause of action in the matter.

Case Background

A New York Family Lawyer said the couple was married in the state of New York in 1952. They have two children together, Paula who is over the age of 21 and Glenda who is 14 years old. The couple has a history of marital strife since the marriage began. Around the year 1967, the plaintiff husband left the defendant and went to Mexico. While in Mexico he obtained a unilateral divorce. Based on this divorce the plaintiff remarried a few years ago and is currently living with his “new” wife. The plaintiff is not relying on this divorce for this instant proceeding.

During the marriage to the defendant it appears that the plaintiff failed to support the defendant and the children. This resulted in the defendant applying for public assistance. She brought forth a support proceeding in the Family Court. An order of support was issued by the Family Court in 1968. This support order directed the plaintiff to pay the defendant $70 per week. A New York Custody Lawyer said at the same time a protection order was issued that required each of the parties was to remain away from the home and work of the other. This protection order was to remain in effect for twelve months.

The plaintiff and defendant have lived separately since the protection order was put in place. The couple has currently been living separately for seven years and based on the order the plaintiff has entered an action for divorce.

Defendant’s Argument

The defendant supports her motion to dismiss the complaint for insufficiency states that the Family Court order is not the equivalent of a decree or judgment of separation because this order cannot affect the marital status of the couple. She further states that the legislature has never contemplated converting divorces based on orders that are made by the family court and the fact that the marriage may be dead does not create a ground for divorce. The defendant further argues that allowing a divorce based on the grounds alleged by the plaintiff would be essentially usurping a function of the legislature and is contrary to public policy.

Plaintiff’s Argument

The plaintiff opposes the motion for dismissal arguing that the mutual order of protection satisfies the requirements made by section 170 of the Domestic Relations Law which states that a protection order provides proof that a couple has been living apart. A Queens Custody Lawyer said he further argues that the cause of action that is based on the protection order is consistent with the legislative content.

Court Decision

A Queens Family Lawyer said the court has carefully reviewed the facts of the case and has determined that there is cause for divorce based on the protection order that was made in the Family Court. This order satisfies the proof needed that the couple has been living apart for a number of years. A divorce hearing will be scheduled to conclude the matter.

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