Thursday, August 19, 2010

DivorceNewYorkStyle: No-Fault(y) Towers- New York Ends the Need to Prove Grounds for Divorce

No-Fault(y) Towers: New York Ends the Need to Prove Grounds for Divorce

Thankfully, the day has finally arrived where New York State has emerged from the dark ages of divorce law and joined the other 49 States by enacting no fault divorce. Finally, our citizens do not have to remain in marital purgatory simply because outdated law says they must.

A divorce case, and the relationship which underlies it, is fraught with angst, disagreement, turmoil and sometimes violence. The “Sturm and Drang” often reeks of pettiness, hatred, and disgust– all that remains of two people, once in love. It then spills beyond– to children who are affected for years to come as their formative and adult relationships are molded by the dysfunction of what they grew up to view as “normal”. What then has been the benefit of adding a battle over “grounds” to this mix, where the horrific and salacious details of a marriage’s demise is required to be set forth in writing and proven in a court of law, merely because one party decides to contest? The answer is “none”. Even where there was no “War of the Roses”, if statutory grounds for divorce did not exist or were tenuous, allegations needed to be conjured or embellished. A perjurious fiction often resulted. Did this aid society or the interests of justice? Of course not. Adding to the already acrimonious atmosphere surrounding the marriage’s destruction (economic dissolution, custody and parenting battles, support litigation, etc.) by mandating the pleading of marital fault, was archaic, inane, and counterproductive; throwing the proverbial gas on an already blazing inferno.

For far too long, the elimination of the fault ground mandate has been successfully fought by a disproportionately small, but powerful variety of institutions– clergy stepping over the demarcation between church and state; misguided advocates believing that fault protected disadvantaged women more than it chained them to remain with men who refused to let them go; legislators pandering to special interests in slavish devotion to re-election. Then there are the sincere– those who truly believe that no fault makes it “too easy” to be divorced; that the “sanctity of marriage” is paramount. While it is hard to argue with another’s belief system, questions must still be posed and answered. Isn’t an individual’s own determination of the state of their personal happiness, when it has no bearing, import or impact on their neighbor’s view of it, more important? Does being forced to remain in a state of perpetual disharmony, in full view of the children affected by it, venerate the marital institution and help to raise healthy children? Is requiring a spouse who cannot sustain grounds to “buy” their way out of the marriage by way of an otherwise onerous settlement an acceptable solution? Is it more honorable to leave a litigant with a choice between perjuring him or herself to gain a divorce on “sexual abandonment” grounds or be left bound to a loveless and damaged life ‘til death do they part?

As a matrimonial attorney of over 23 years, I can state unequivocally that the passage of no fault divorce is a welcome relief. Most of my brethren and sistren would say the same; the major bar associations were in favor of its passage. The flames of conflict in a contested matrimonial case have been fanned, stoked, and drenched with lighter fluid to the point that a Viking funeral pyre would be envious of its white-hot blaze. Let us all be thankful that one very large log has been removed from the fire.

Wait...did I forget to mention the counterclaim? Can't we bask in the glow just a little while longer?

Monday, August 16, 2010

News: No Fault Divorce and Other New Laws

Governor Signs No Fault Divorce Bill.

On August 14, 2010, Governor Paterson signed three bills into law affecting matrimonial practice effective 60 days hence and applicable to cases and proceedings thereafter commenced. New York, formerly the only remaining State not to have a form of no-fault, has now joined the rest of the Union. It provides for a new ground for divorce as follows:

"The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under
this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce."

In addition, there are two other laws which were enacted. They generally relate to (1) the establishment of a presumption for counsel fees to be awarded to the non-monied spouse; and (2) a formula for interim spousal support in a manner similar to the provisions of the Child Support guidelines. The latter law also adds domestic violence and parties living together before the marriage as factors in awarding post-divorce maintenance.

More details and analysis to come in the near future

Wednesday, August 4, 2010

News: California Federal Court Overturns Ban on Same-Sex Marriage

The Chief Judge of the Federal District Court in San Francisco, ruled that California's Proposition 8 was unconsitutional. Proposition 8, by 52% vote of the electorate, previously overturned the State Judiciary's ruling in favor of same-sex marriage. The Chief Judge immediately stayed his decision pending appeal. The link to the New York Times' story is at