Timmins v. Timmins

—Judgment unanimously affirmed, without costs. Memorandum: In this appeal from a judgment granting plaintiff husband a divorce pursuant to subdivision (6) of section 170 of the Domestic Relations Law, the question presented is whether there was substantial compliance with the terms of the separation agreement between the parties. The fact that the husband, on occasion, fell in arrears on payments due under the separation agreement does not mean that he failed to substantially comply with its terms (Rubin v Rubin, 35 AD2d 460). Nor does the fact that he sought court approval of a reduction in payments required during periods of financial difficulty. It should be noted that the terms of the separation agreement required defendant wife to effect sale of certain jointly owned real property and to divide the proceeds but that she failed to do so. The record shows that his marriage is no longer viable. It is in the best interests of society that the parties to a dead marriage be able to extricate themselves from a perpetual state of marital limbo (Gleason v Gleason, 26 NY2d 28). (Appeal from part of judgment of Onondaga Supreme Court in divorce action.) Present — Moule, J. P., Cardamone, Simons, Mahoney and Witmer, JJ.