Opinion
December 8, 1975
In an action for divorce, defendant appeals from an order of the Supreme Court, Kings County, entered April 25, 1975, which denied her motion to dismiss the complaint for failure to state a cause of action. Order reversed, with $50 costs and disbursements, and motion granted. Nothing less than a judicial judgment of separation can be the basis for a divorce under the clear requirements of subdivision (5) of section 170 Dom. Rel. of the Domestic Relations Law (Becker v Becker, 44 A.D.2d 676). Therefore, the mutual order of protection issued by the Family Court simultaneously with an order of support may not be the basis for a divorce. Any expansion of the no-fault grounds for divorce must be left to the Legislature. Martuscello, Acting P.J., Cohalan, Christ, Munder and Shapiro, JJ., concur. [ 81 Misc.2d 821.]