Bench Mark: Till death do we party

By Hon. Robert J. Lunn
The Daily Record Newswire

“In Hollywood a marriage is a success if it outlasts milk.” — Rita Rudner

For 19 years I have been officiating at weddings — I’m sorry, but that’s what they call it, “officiating” — and I sign the marriage certificate as the “officiant.”

Admittedly, it’s not particularly romantic sounding, and probably subject to some tasteless jokes, but the state hangs its own labels on everything and it is, after all, the state.

My first judicial service was as a local judge in Penfield, NY, followed by 14 years on the supreme court bench. For those of you out there who may be wondering: Retired judges are permitted to perform wedding ceremonies. In fact, I have one scheduled for next month.

I believe the “retired judge rule” originated legislatively with one of our own local judges, Judge Jack Van Ingen of Webster, who also was known affectionately as the “marrying judge.”

As I recall, he had quite a gig going in the ‘70s and ‘80s, with a gazebo in his backyard and his wife, Virginia, pounding away at the organ. Even back then, judges had to find a way to supplement their incomes. Think of it as “Las Vegas East.”

When the judge retired from the Webster bench, it was no surprise that the right of a retired judge to perform wedding ceremonies followed him into retirement. I guess, to a certain extent, I am the beneficiary of that special legislation. It still gives me a reason to periodically dry clean my robe and involve myself in a truly happy event.

Officiating at wedding ceremonies still gives me the opportunity and happy experience of having the bride and groom exchange vows in the presence of friends and family and two official attendants, declaring their complete and undivided commitment to one another till death do they part. Or at least until they retain legal counsel and commence proceedings to dissolve the marriage.

Late Thursday, July 15, that became a whole lot easier in the New York with the passage of a bill that eliminates “fault grounds” as a necessity for obtaining a divorce. As of this writing, it awaits Gov. Paterson’s expected signature.

New York is the last remaining state to require proof of a fault ground such as cruel and inhuman treatment, adultery, abandonment or imprisonment. The only no-fault ground in New York was a written separation agreement for a period of one year, later converted to a divorce, but I often had to gently remind litigants who appeared before me — and now clients I represent — that required an agreement.

The new bill would grant a divorce if one spouse states under oath that the marriage has been “irretrievably broken” for at least six months, without requiring the court to assign blame to one spouse or the other for the breakdown.

The legislation has been met with mixed reviews. Supporters, including the New York State Bar Association, praised the new legislation. NYSBA President Stephen Younger called the current laws “anachronistic.”

Marcia Pappas, president of the National Organization for Women’s New York chapter, called out female legislators whom she claimed “danced in the aisle as they threw women and children under the bus."

I’m not entirely sure what that means, or why women and children are “under the bus” any more than men, but I respect her opinion as well as her organization so I will attribute the quote to just an interesting visual to make her point.

Is it truly party time? Apparently the new legislation will only permit the no-fault ground if all of the property and support issues are resolved.

That raises an intriguing question for me. I often presided over trials involving the issue of fault precisely because the support and property distributions could not be settled — no grounds established equals no divorce granted, equals no equitable distribution of property between the parties. As an added bonus, they remained married.

At least it’s comforting to know that our incredibly dysfunctional state Legislature hasn’t totally gone to sleep while flirting with a record late passage of our state budget. No longer are we the only state in the country to require proof of fault to be granted a divorce. Party on, Garth!

The Hon. Robert J. Lunn served for 14 years (1995 to 2008) on the New York State Supreme Court, his last three as an associate justice of the Appellate Division of the Second and Fourth Departments. He is a partner at Trevett, Cristo, Salzer and Andolina. Lunn is the contributing author to three publications from West Publishing, the most recent being The Companion Handbook for Pattern Jury Instructions. He can be reached at rlunn@


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