Judge denies divorce, says ''Adultery not enough''

[Brent]

Weird caselaw.

Judge denies divorce: Adultery not enough

Says husband's admission of affair is not sufficient to end 17-year marriage because wife resumed sexual relationship with him
   
BY CHAU LAM
STAFF WRITER

August 12, 2004

Gail Ozkan's husband admitted he'd had an extramarital affair but a State Supreme Court justice in Suffolk recently ruled that was not enough to end the couple's 17-year marriage and refused to grant her a divorce.

"How could this be?," Ozkan, 43, of Mount Sinai, said Wednesday. "I was stunned, actually."

But even if Ozkan had other proof that her husband, Okan Ozkan, also 43, had committed adultery, the fact that she resumed a sexual relationship with him after learning about his affair is tantamount to "forgiveness," Justice William J. Kent said in his Aug. 2 decision.

"Adultery cannot be established solely by the admission or confession of the defendant. Rather, there must be additional corroborating evidence which supports the finding of adultery," Kent said in his four-page decision, denying Gail Ozkan's request for divorce. "Moreover, merely the general admission by the defendant, that he had an affair with someone other than his wife is not, by itself, an admission that he engaged in adultery within the statutory definition."

Like it or not, that's the law in New York State, said Pia Riverso, a matrimonial lawyer in Uniondale. "It's unfortunate for the parties involved but it's not a bizarre decision," Riverso said Wednesday.

Riverso and legal experts said most couples don't challenge each other on the grounds for divorce. But in cases where there is a challenge, it is the burden of the person seeking a divorce to show that the spouse has committed acts such as adultery, cruelty, or desertion.

Currently, there is a move to get lawmakers in Albany to adopt a different law -- one similar to those in states such as California and Florida -- where grounds for divorce are as uncomplex as irreconcilable differences.

Vincent Stempel Jr., a matrimonial lawyer in Garden City and chairman of New York State Bar Association Family Law Section, said his organization voted in June to lobby lawmakers to make the changes.

"It's long overdue," Stempel said. "It decreases counsel fees and frees up valuable court time."

Okan Ozkan, who owns and operates two gas stations, couldn't be reached for comment Wednesday.

Gail Ozkan's attorney, Gloria May Rosenblum of East Islip, said Ozkan's husband will not agree to a divorce unless she takes the settlement he's offering.

Okan Ozkan's attorney, Deborah Poulos of Hauppauge, said Rosenblum's statement was "sour grapes" but would not say why her client didn't want a divorce.

In a phone interview, Gail Ozkan said that after she confronted her husband about the affair, he promised to break it off and work to keep their marriage together. But several months later she said she learned through friends that her husband was still involved in the affair.

During the divorce proceedings before Kent, the question of whether her husband was having an adulterous relationship came up. However, Okan Ozkan refused to answer and invoked his Fifth Amendment right. In New York State, adultery is considered a crime.

Tuesday night was the first time the couple saw each other since the court decision, Gail Ozkan said. Her husband came by to take their son, 14, and daughter, 12, out for ice cream.

"When he is here it's very tense, at best," said Gail Ozkan.

Poulos said Okan Ozkan still lives at the Mount Sinai home. Gail Ozkan said he stays there only sporadically.

The couple talks to each other only when it's necessary, she said. She plans to appeal Kent's decision. If that fails, she will file for divorce, again.

"I can't live like this. My children can't live like this. This is an unsuitable life," she said.

http://www.newsday.com/news/local/longisland/ny-lidivo0812,0,7908400,print.story

[TGB]

It's about time that the one who doesn't want the divorce gets some leverage. He needs that kind of leverage to get anything close to a reasonable deal out of the divorce.

It's unlikely that he will be able to avoid divorce entirely. Her most likely next step is to use false abuse allegations, so he needs to act fast and try to come to a settlement with her before she plays that trump card.

I'm not condoning the affair, but in divorce a guy generally needs all the leverage he can get to be able to work out any kind of reasonable parenting plan.

[StPaulieGirl]

You're not condoning the affair?  The guy screws around on his wife, lies to her, she gets fed up...and you're trying to figure out a way for the guy to avoid consequences.  Sweet.

Dude, that is one sick post.

[harlequin]

After having been against no-fault divorce for years, I finally realized that a person who is hell-bent on ending a relationship will do that.  I think it's only realistic.  Love cannot be legislated or court-ordered.

As for this particular case, yes, it stinks that the guy had/is having an affair outside the marriage.

It could be that he's leveraging her to take an unfair settlement, in which case that stinks too.

But it's also possible that she's asking for an unfair settlement.  I'm not saying the guy should avoid consequences, and I'm not condoning the affair.  If we don't know the specifics of the settlement request and the settlement offer, we don't know which (if either) of them is being unreasonable.

We need marriage reform, not divorce reform.

[VeronicaGia]

than the divorce.  She either wants a divorce or she doesn't.  If she wants it badly enough, she will accept the settlement and move on.  

[StPaulieGirl]

I think there is probably a little more to the story than what was published.  Just as well, we don't need the gory details.

For one thing, marriage is a contract, besides a covenent with God.  You make certain promises when you recite your vows (earth to Britney Spears).  According to the article, the wife forgave her husband because he promised her that the affair was over.  She wanted to try and save her marriage.  She later finds out that her husband was still having an affair.  I'll bet she felt the need to take a shower after she found out.

With all the hairbrained reasons people come up with to get a divorce, it makes no sense to me that the judge wouldn't grant this woman one.  We live in an age of incurable STD's.   Years ago, not only would divorce be granted, but the offender would be smacked hard by the court and society.  Society being what it is today, no one even blinks an eye when adultery occurs in a marriage.  Look at the tv shows these days.

Actions used to have consequences.  I can't comment on the settlement part, but she does have the right to obtain a divorce and custody.  As should a man in this situation.

Legality, fault or no fault aside, this is an intense personal issue for the person who was betrayed.  It's not like this guy gambled away their life savings.  That's another legitimate reason for divorce, but it isn't as emotional as the adultery issue.

We need to reform society.  When we as a society no longer tolerate big government interfering in our families, when we go back to the time where people were actually judged by their behavior instead of getting a free pass, and when people actually value themselves, then maybe we'll see a change.  All we're doing these days is breeding sociopaths and narcissists.

[TGB]

Personally, I believe that 9 out of 10 divorces today shouldn't happen at all. People make a lasting, binding commitment when they marry. Unfortunately, the courts don't feel that any part of that commitment is worth anything except child support.

I would like to have it much more difficult to get a divorce where at least one party doesn't want it, especially when children are involved. Far too many people don't even try to live up to their commitments at marriage. Unfortunately, requiring a person to show fault in a divorce also increases incentive to make false accusations of abuse, so I'm not sure which is really better.

The guy in this story didn't live up to his commitments. The way this story is written, it appears that she tried very hard to live up to hers by giving him a second chance, which he blew. I suspect, however, that the judge had good reason to deny the divorce. I doubt his purpose was to keep the divorce from happening, since the situation is probably well beyond the point where that is likely or possible, but more likely the judge wanted to put pressure on one of the parties (probably the mother, since she seems to be the most upset by this ruling) to negotiate.

Most women today know that, in the divorce, they get the kids and most everything else if they just refuse to compromise or negotiate. The courts reward them for playing hardball by giving them full custody, child support, and just about anything else they ask for.

It appears, from reading between the lines in this story, that the man wanted to negotiate a deal, but the woman expected the judge to give her everything without an agreement. The most common source of disagreement on issues like this where children are involved is time with the children. I would bet money the father wants a joint custody arrangement and the woman refused to consider that. That is the only reason I can see a judge making a ruling like this. He's thinking about the children.

Even if the guy is a jerk, his children still need him. The allegations mentioned in this article say that he was a lousy husband, but that doesn't automatically make him a lousy father. Using the children as a way of punishing him or getting revenge (as many of our visitors can attest is a common practice) is not in their best interests. Far too many courts let that happen because the laws have tied their hands. This judge appears to have found a way to use the law effectively.

I could be wrong. This could be a judge on a power trip, but I suspect there's more to this story than we were told.

[StPaulieGirl]

I agree that many divorces are unnecessary.  I also agree there are a lot of women who see children as a way to access a man's wallet.  OTOH, there are men who will use their wallet and the children as a weapon against a fed up wife/lover.  

Bringing back the fault in divorce proceedings would clarify worthless filings against ones with merit.   It would also help clarify custody proceedings, and alimony, etc.  

I'll bet money there is something else the PC press isn't telling us.  Look at the names of the couple.  If the father/mother obtains joint custody, what is to stop him/her from taking the children back to his/her home country?  Maybe this is the problem we aren't hearing.  The wife is trying to prevent him from running off with the kids?  I'm sorry if this seems racist or prejudiced, but the facts are there from other cases where this has happened.  No way in hell will an American parent be able to rescue their kids from a ME country.  Fathers automatically get custody when they divorce their wives...if they don't stone them to death first.  Their culture is different than ours.  If this man is a follower of Islam, he is allowed concubines and secondary wives, no matter where he is living.  Maybe this is why his American wife is hanging in there.  Who cares about money if your kids end up living in a war zone?

I have to slightly disagree with your thoughts about lousy husbands can be good fathers.  Just from personal experience.  It's a character problem.  When a mother or father is expending time, money, and energy towards extramarital affairs, it takes time and resources away from the family.  Sure, the parent can be there for ballgames and school events.  The main job of a parent is to raise a child.  Teaching a child that it's ok to cheat on your spouse isn't setting a good example.  Neither is serial sex partners that are introduced to your children.

Your comment about being a "lousy husband" hit a nerve with me.  I had a handwritten note from 2000 from my ex, while we were separated.

"Even though I'm a lousy husband and a rotten father, I want to come back home.  I hate my mother's cooking, Tim(his brother)is driving me nuts, and I have to do my own laundry".  That about sums up my marriage.

His brother told me that while my ex lived with them, my kids were babysat by Grandma and him.  My ex was on the foxhunt nonstop trying to find an enabler.  My ex mother in law died February 2003.  The kids were devastated.  My little one got to know her grandma, who sat and played cards and Chinese checkers with her.  Grandma was not amused by the parade of one night stands that my ex brought home in front of the kids, during their visitation weekends.  This is from his brother, btw.  I heard the same thing from my son, who would come home and punch holes in things.  

I did download the parental timetracker, but that was HP hardrive POS #4.  I should have been taking notes, but writing down all the crap he pulls makes me ill.  The whole thing makes me sick.

If there is a way to keep this man from getting the kids out of the country, then he should have decent visitation, if not 50/50 custody, barring unknown circumstances.  

[jilly]

Dayum...just...dayum

[grazer]

Not in today's world/society. In today's world/society, the woman in a divorce settlement is taught by society and lawyers to go for every penny of money and assets that the woman can dig out of the man. And the courts foster this type of settlement.

So therefore a lot of women (not all) will sue for divorce and then drag the issue out in the courts and attempt to get the male/spouse to settle out of court for un-realist settlements. And when the male refuses to an un-realist settlement and thinks he will get a fair settlement via court, he gets slammed by the courts. Happens time and time again! Also the above is the reason divorce attorneys enjoy and are more profitable to represent females in divorce.

The courts are still practicing old laws in a lot states/countys. Old law referrs to the old ideals that the man is the sole income earner and the woman is the house wife that stays home to raise the children. Therefore with this ideals, the court views that it's only correct to make sure that the woman received as much as possible per settlements in divorce. And this "as much as possible" settlement doesn't only hold true for division of martial assets, it also holds true for amount of child support awarded.

Also, the vast majority of child support awards are given to the woman. Because over 80% custody is given to the woman per divorces. This is changing in some parts of this country, yet in other parts of this country this is still the way the courts view divorce.

[SLYarnell]

your ex'es do not make all "bad husbands" "bad fathers"

I am oh so glad you are not a judge sitting on a bench somewhere deciding the fate of someones children...

[grazer]

This is exactly what happened to me during my divorce. My ex was having mutiple adulterous affairs. I found out and ex agreed to never do it again and I agreed to go to martial couseling. We attended family and marriage couseling for 1.5 years. We continued to have sex. Found out that ex was still having affair. Ex filed for divorce, before I could, knowing that the spouse that files for divorce first usually has an advantange.

Ex and ex's attorney proposed a very un-realistic divorce settelement. I counter proposed what I believe to be what the court would grant in the form of settlement. My ex's attorney very nastly and threatened in a return letter to my proposal for settlement, "I wish for you to be aware of Supreme Court ruling xyz that states that audltery does not automatically allow a spouse to not pay alimony to a spouse that committs adultery".

In other words what ex's attorney was threatening, agree to our un-realist divorce settlement or we will file for alimony also and probably be granted it. Even though I had done nothing wrong in the course of the marriage and my ex had mutiple affairs.

Sounds to unreal to be true. But upon my attorney and other attorney's advice, I found that Suprem Court ruling to be exactly as ex's attorney had threatened. So I had fight thru the court system for a reasonable/equitable divorce settlement. Which my ex and her attorney dragged out for over 2yrs.

So this story that Brent has posted, doesn't only apply to the victim being female and the adulteror being male!!

[StPaulieGirl]

So this story that Brent has posted, doesn't only apply to the victim being female and the adulteror being male!!

You are so right.  You have to pay this woman alimony?  Talk about getting your nose rubbed in it.  You didn't mention if you have children.   Did she get them too?  I do want to say that you did the right thing by trying to save your marriage.  

The road to hell is paved with good intentions.  Family law is a dark, sinister place, as we all know.

[StPaulieGirl]

Lol, I think I'm a little more objective than some of the judges some of you folks encounter.

This is not just based on my personal experience with my ex when we were married, but the hijinx he's been pulling for the last several years regarding the court order, and his personal behavior during his  visitation.  He is special, therefore he demands special treatment.  He's never met a rule he didn't try and break.

I am also personally aquainted with many guys who get screwed by their ex wives and gf's who are of the same ilk as my ex.  You see, it's not gender...it's the inherent personality traits of the wrongdoing party.  When you call him/her on their behavior, the first thing they are compelled to do is to strike back.  It's your fault that you caught them doing whatever.  They are dangerous people.  They can snow practically anyone.  Especially burned out judges...

Let me comment on your remark about "bad husbands, bad fathers".  I thought I had made my comments non gender specific.  Obviously I failed to imply my objectivity about this particular scenario.  My apologies....  

[grazer]

No I did not have to end up paying alimony. I took my case thru the court system, and ex and her attorney retracted their threat to ask for alimony. Don't know if they had asked for it, they would have gotten it from a judge or not. But the threat of asking for alimony on top of 20% of adjusted gross income for child support. Had me very scared! If ex would have been awarded 20% of my income for child support and then been awarded alimony, I would have been paying my ex wife almost a 33% of my monthly income and would have left me with very little to live off of.

Yes my ex was awarded custody. In my state women are awarded custody over 80% of the time. And for a woman in my state not to be awarded custody, the woman must either be in prison or not want custody or some other very drastic reason.

[StPaulieGirl]

She doesn't deserve alimony, and I'm glad she didn't get it.  I know a couple of guys who live on people's couches because of the amount of support they pay.

There needs to be a complete overhaul of the family(the whole entire)court system.  It's rotten and corrupt from top to bottom.

Don't worry.  Like my friend says, they'll be 18 soon enough.