When Will New York Finally Get No-Fault Divorce?
For over 40 years lawmakers, lawyers, women’s right advocates and others in New York State have debated whether New York, like virtually all other 49 states in the Union, should have no-fault divorce.
No-fault divorce has been defined as “a divorce in which it doesn’t matter who did what to whom that caused the marriage to break down; all that matters is that there is no reasonable prospect of reconciliation.”
That sounds reasonable enough and theoretically removes much of the animus that permeates many divorce cases that come into our matrimonial and family law practice. On the surface, that explains why almost every state has adopted no-fault legislation. But, let’s remember, even with no-fault divorce, all the other sticking points remain to be hammered out between the parties, such as equitable distribution, child support, custody and visitation and alimony.
In general terms, in New York the grounds for divorce are “cruel and inhuman” treatment; adultery; abandonment for one year, having spent at least three years in prison; or having lived pursuant to a separation agreement for one year. Most of these grounds for divorce have a highly charged inherent emotional component. That is one of the reasons our firm likes to offer mediation and collaborative law as an alternative to a nasty divorce trial.
A recent study by the University of Pennsylvania revealed a drop in domestic violence of 33% in no-fault divorces – a powerful statistic indeed. But, unfortunately, that’s not the end of the debate. The influential New York State office of the National Organization for Women has staunchly opposed legislation for no-fault divorce under the rubric that women still in large earn less than men, and that men would unfairly benefit from no-fault divorces.
In its recent report, the Matrimonial Commission established by the Chief Judge of New York State found that New York’s fault-based divorce system has a direct impact on the manner in which, and the speed with which, matrimonial matters proceed. Substantial evidence, derived from the public hearings held by the Commission and the professional experience of the Commission members, lead the Commission to conclude that fault allegations and fault trials add significantly to the cost, delay, and trauma of matrimonial litigation and are, in many cases, used by litigants to achieve a tactical advantage in matrimonial litigation. The Commission urged the New York State Legislature to enact an amendment to the Domestic Relations Law providing for no-fault divorce.
The Matrimonial Commission published its findings in early 2006, and so far the Legislature has not acted to change the divorce laws here in New York. If the Legislature does pass a new law, I will certainly write something about it. So check the blog regularly for news and analysis on this and other topics of interest.
