section 236 alimony in New York

1983Accordingly, even if respondent could have been denied alimony pursuant to section 236 of the Domestic Relations Law, petitioner clearly waived protection under the statute (see, e.g., Voss v Voss, 54 AD2d 1032, 1033 ).

1979Indeed, since the divorce judgment was predicated on petitioner’s misconduct, she would have been barred from receiving alimony pursuant to section 236 of the Domestic Relations Law (Hessen v Hessen, 33 NY2d 406 ), absent a stipulation between the parties to the contrary in writing (see, e.g., Voss v Voss, 54 AD2d 1032 ) or on the record (see, e.g., Winsman v Winsman, 46 AD2d 820 ).

1979Indeed, since the divorce judgment was predicated on petitioner’s misconduct, she would have been barred from receiving alimony pursuant to section 236 of the Domestic Relations Law (Hessen v Hessen, 33 NY2d 406 ), absent a stipulation between the parties to the contrary in writing (see, e.g., Voss v Voss, 54 AD2d 1032 ) or on the record (see, e.g., Winsman v Winsman, 46 AD2d 820 ).

1976"It is beyond cavil that section 236 of the Domestic Relations Law negates the obligation of a husband to pay alimony to a wife where he has obtained a divorce based upon her misconduct (Hessen v. Hessen, 33 N Y 2d 406, 410-411; Votta v. Votta, 40 A D 2d 532; Math v. Math, 39 A D 2d 583, affd. 31 N Y 2d 693; Smith v. Smith, 60 Mise 2d 692).” (Mellen v Mellen, 46 AD2d 790 .) A husband can waive this provision or right (Winsman v Winsman, 46 AD2d 820 ).

1991(See, Carter v Carter, 52 AD2d 835 , lv denied 40 NY2d 804 .) However unsatisfactory the result reached here may be, it is nonetheless mandated by controlling law.

1981In an action governed by part B of section 236, on the other hand, a plaintiff’s purported misconduct would not preclude an award of maintenance and/or marital property (see Deschamps v Deschamps, 103 Misc 2d 678, 680-682 , supra).

1980With regard to the reduction in alimony pursuant to section 236 of the Domestic Relations Law, plaintiff had the burden of establishing a substantial change in circumstances in order to justify such a reduction (Langlitz v Langlitz, 73 AD2d 740 ).

1979Indeed, since the divorce judgment was predicated on petitioner’s misconduct, she would have been barred from receiving alimony pursuant to section 236 of the Domestic Relations Law (Hessen v Hessen, 33 NY2d 406 ), absent a stipulation between the parties to the contrary in writing (see, e.g., Voss v Voss, 54 AD2d 1032 ) or on the record (see, e.g., Winsman v Winsman, 46 AD2d 820 ).

1977Having chosen to date to ignore that procedure and to resort to a course of self-help, the exercise of discretion by Special Term under section 244 of the Domestic Relations Law in awarding plaintiff the amount of alimony arrears is supportable and must be affirmed (Mittman v Mittman, 30 AD2d 867 ).

1976(See Kall v Kall, 35 AD2d 943 ; Schine v Schine, 36 AD2d 300 ; see, also, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law, § 236.) However, assuming misconduct of the plaintiff as alleged by defendant, the marriage bond continues and is not dissolved without a judicial proceeding (NY Const, art I, § 9).

1976(See Kall v Kall, 35 AD2d 943 ; Schine v Schine, 36 AD2d 300 ; see, also, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law, § 236.) However, assuming misconduct of the plaintiff as alleged by defendant, the marriage bond continues and is not dissolved without a judicial proceeding (NY Const, art I, § 9).

1976An award of counsel fees under section 237 of the Domestic Relations Law is not subject to the alimony-bar provision of section 236 (Thompson v Thompson, 44 AD2d 849 ).

1976"It is beyond cavil that section 236 of the Domestic Relations Law negates the obligation of a husband to pay alimony to a wife where he has obtained a divorce based upon her misconduct (Hessen v. Hessen, 33 N Y 2d 406, 410-411; Votta v. Votta, 40 A D 2d 532; Math v. Math, 39 A D 2d 583, affd. 31 N Y 2d 693; Smith v. Smith, 60 Mise 2d 692).” (Mellen v Mellen, 46 AD2d 790 .) A husband can waive this provision or right (Winsman v Winsman, 46 AD2d 820 ).

1974In Brown v. Brown ( 71 Misc 2d 11 ), this court suggested that the recent New York legislation providing for conversion divorces might well stimulate a change in the common law in the direction urged by respondent.

1972The section further provides that ‘ ‘ such direction may be made in the final judgment in such action or proceeding, or by one or more orders from time to time before or subsequent to final judgment, or by both such order or orders and the final judgment. ’ ’ In Smith v. Smith ( 60 Misc 2d 692 ), the Family Court of Ontario County held that, even though a final judgment of divorce had been entered and filed and the order made no mention of alimony, the Family Court had jurisdiction to decide the question of support or alimony under section 236 of the Domestic Relations Law and section 466 of t