Res Ipsa Loquitur

First, Gail had had sex with her husband after learning about his affair. That brings in the legal theory of condonation. Black's Law Dictionary defines condonation as "pardon of offense, voluntary overlooking implied forgiveness by treating offender as if offense had not been committed." In other words, if you forgave them enough to have sex with them, you forgave them enough to stay married to them. Logical enough, yes?

Of course, some try to take advantage of that theory by conning the innocent spouse into bed, then using that to leverage a more 'favorable' settlement. (Which is why I always told my clients at our first meeting "Do Not. Under Any Circumstances. Have Sex. With Your Spouse. Again." And I would repeat that advice at every opportunity.)

But even then there's an out. If the offending spouse continues whatever it was that was grounds for divorce, then condonation doesn't apply....which apparently happened here.

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.

Ok, condonation doesn't really apply, so why no divorce?

For the second reason the judge ruled correctly. She had no corroberating evidence of the adultery. Her husband quite correctly invoked his 5th Amd. right against self-incrimination....correctly because adultery is a crime under New York law. And she apparently didn't have any other proof that the adultery happened, besides her testimony. Since her husband was contesting the grounds for divorce, that wasn't enough. Which isn't as dumb as it first sounds, because you sure don't want judges making decisions based solely on the testimony of one person. Right? Because, and this may shock you, people lie in court. I know, you may find that hard to believe, but they do....especially if money's involved.

So under New York law, at least as stated in the article, the judge's decision wasn't outrageous or particularly newsworthy....except to illustrate the fact that New York doesn't have no-fault divorce. And judges can't do anything about that until the legislature changes the law. The reporter missed a good opportunity to skewer the legislature and advocate for a change in the law, IMO....should've focused on that and not the judge.

What do they teach in journalism school nowdays anyway?

Class dismissed.