Judge denies divorce: Adultery not enough

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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.

Copyright © 2004, Newsday, Inc.

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