A very interesting case was just recently decided by Justice Robbert Bruno, a New York Court Judge... in fact so interesting that I could not hold myself back and not share this case. A woman was seeking a divorce on the ground of constructive abandonment, claiming that her husband refused to have sex with her since their honeymoon in 1979. Wait, before we all start feeling bad for the lady... it gets better.... miraculously however, this woman, despite her claim of not having sex with her husband in nearly 30 years... just happened to be the mother of 2 kids which she has had way after he honeymoon in 1979. OOPS. After the attorney reminded her that she has 2 kids with the husband, Plaintiff quickly changed her story and said the last time she had sex with the defendant was in 2001 . However, her story changed one more time, when defense attorney cross-examined her and asked when was the last time she had sex with her husband, she stated it was "over three (3) years".... OOOPS again! Didn't she just say last time she was intimate was in 2001... wouldn't that be more like over 7 years!!! Not quite sure who prepped her for her testimony...but lady... get your story straight. Wait.. it gets EVEN BETTER!!!! Imagine that. A brief background on the law of constructive abandonment: the person who is pleading constructive abandonment must prove that despite repeatedly requesting sexual relations from the other spouse, she/he was refused such relations, such refusal was unjustified, willful and continued for more than 1 year. The key point here is that a request must have been made and declined. Ok... so now that we all brushed up on the law... here is the kicker: when asked how often she asked her spouse to have sexual relations with her during that time, the Plaintiff simply admitted that she never requested her husband to have sexual relations with her. UMMM ok... so what was the problem here????
I think I do not need to give my two cents on the sophistication of this particular Plaintiff, however... we must wonder who prepared her for the inquest. I mean... isn't it our duty as attorneys to explain to our clients what the law is... and guide them appropriately? If a woman comes into an office seeking a divorce on the ground of constructive abandonment, isn't it our job to explain what constructive abandonment is??? And more importantly, isn't it also our job to advise the client how important it is to tell the truth and not perjure herself??? Why else do clients hire attorneys???? Not just to pay us a retainer... I presume, but rather to give some legal advice. Seems reasonable enough, right? And I know sometimes, even with my own client, no matter how much you explain to them the law, and prepare them for depositions or trial, so that they know what to expect.... they sometimes baffle us and start saying things, you never heard before, which were never disclosed to you before, and you sit there with you head in your hands thinking... OMG (among other pleasantries that come to mind) and then scold the client about not disclosing the information, making up facts and lying under oath. I admit all of that happens, and it happened to me... where you are sitting there looking like you, as the attorney are the idiot, when in fact, the client just started blurting out things you never even knew about or discussed. I truly hope this is the case here, otherwise, I would suggest her attorney take some brush up courses on the law, ethics and proper client preparation.
To read the opinion go to: http://scholar.google.com/scholar_case?case=14276577943439993992&hl=en&as_sdt=2&as_vis=1&oi=scholarr
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