Wednesday, December 8, 2010

New York Becomes a "No Fault" Divorce State

“Common sense is the knack of seeing things as they are,
and doing things as they ought to be done.” – C.E. Stowe

Finally, after decades of resistance, New York decided to join the other 49 states and offer a “no-fault” divorce option to those couples who want to simply part ways without having to accuse each other of some type of wrongdoing. It took many, many years to get to this point. Every time there would be a proposed bill to add the “no fault” provision to the law it would be defeated because of the resistance from different types of concerned groups and lobbying efforts. Finally this year, it did pass.

What does “no fault” mean? Before, in order to divorce in New York State you needed to come up with a “fault” ground, which means that one spouse had to accuse the other of something. If you had a couple where both sides were in agreement that they wanted to divorce right away, there was no option such as “irreconcilable differences”, which has existed for decades in other states. The only way couples in New York could divorce without being forced to accuse one another was to execute a separation agreement and then wait a year. They could then assert “living pursuant to the terms of the separation agreement for a year” as a ground for divorce. The new “No Fault” ground allows parties to submit divorce documents to court right away without having to wait a year or having one side accept the blame for wrongdoing.

Why the resistance to “no fault”? Historically, some religious groups resisted it because of their concern that if getting divorced became “too easy” people would not try to make an effort to stay together.

The other groups that were against it were those having to do with domestic violence. These groups advocated for victims of domestic violence, both men and women, though statistically women were more often the victims. The primary concern was that if the husbands had the opportunity to get out of a wrongdoing reason for divorce, they would be able to file very quickly, and then use the spouse’s fear to cheat them out of a claim of financial support or equitable distribution of marital assets. For decades there was resistance based on that, but in recent years, some of the members of the organizations that fight domestic violence, came to realize that the abusers tended to be pretty successful in manipulating the court systems even with the wrongdoing grounds, so that wasn’t really helping the victims.

Thus, finally, as of October 12, 2010 you can get a “No Fault” divorce in New York if, according to either party, the marriage has broken down irretrievably and has been broken down irretrievably for at least six months. This doesn’t mean that the couple has to be actually separated for the six months; they just have to state that the marriage was completely broken down for the past 6 months. Now one side can unilaterally allege that the marriage is irretrievably broken and submit a claim for divorce on the basis of this new ground.

This legislative breakthrough did not come without strings attached, however, and there are many strings. The new law only really helps remove the grounds as an issue in a contested divorce, but couples still have to resolve all of the other issues having to do with the children, with child support, with spousal maintenance, and with division of property. Unless all of these are resolved, they cannot get the divorce. If they cannot reach an agreement on all matters, the issues of custody, child support, spousal support and division of property will still go through the court process, but at least the issue of grounds will not.

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