No Fault Divorce: A Look at the Past and Future of New York Divorce Law

Michael Telfer, Editing Chair, Albany Government Law Review Member

On July 1, 2010, the New York Assembly passed a bill making no-fault divorce legal in New York, following in the footsteps of the State Senate.[1] As a result of Governor Patterson’s expected signing of the bill, New York will become the last state in the country to adopt some form of no-fault divorce.[2] This new law will allow couples residing in the state “to dissolve their marriage by mutual consent and without requiring one spouse to accuse the other of adultery, cruelty, imprisonment, or abandonment.”[3] Upon the law going into effect, one spouse will also be able “to divorce the other unilaterally.”[4]

The Evolution of New York Divorce Law

Divorce law in New York has evolved greatly from its first adoption in 1787, when the legislature relinquished its exclusive power to grant divorces and enacted a law “permit[ing] judicial divorce on the sole ground of adultery.”[5] Both the legislature and the courts shared the power to grant divorces until 1846, when “[l]egislative divorce was constitutionally abolished.”[6] In 1877 divorce law evolved further when the legislature authorized courts to “deny divorce, even where adultery had been proven, if the plaintiff had connived in the procurement of the evidence, condoned the offense, or was” also guilty of adultery.[7] These three defenses to adultery remain in place today.[8]

In order to avoid the strictness of New York divorce law, by the late 19th century some New Yorkers began to travel to other states which had less stringent divorce laws, where they established residency in order to “procure a divorce.”[9] This practice was aided by the inaction of the Legislature, as “[b]etween . . . 1900 and 1933, fifteen different legislators sponsored bills to modernize the law” of which a majority failed to pass out of committee.[10]

The lack of support for divorce bills has been attributed to the strength of the Catholic Church and other voting blocs who opposed the liberalization of marriage.[11] Relying on the strength of Catholic voters, “Democrats often avoided controversial divorce issues” as did Republicans who did not want “political risks involved in promoting divorce reform.”[12] The strength of the Catholic resistance was seen when a Republican assemblyman in 1934 attempted to add desertion as a new divorce ground.[13] Even though the bill had the strong support of bar associations and religious organizations, as it provided poor women to get out of their marriages after being deserted, the Catholic opposition defeated its passage.[14] The opposition was so strong around the mid 20th century that “[a]s soon as a bill to liberalize divorce appeared before the New York legislature, a Catholic Welfare League representative would contact lawmakers to remind them that the church was opposed.”[15]

Due to New York not allowing divorce unless adultery was committed, residents in the mid 20th century followed what their ancestors had done in the 19th century to end their marriages without actually divorcing in New York: traveling to other states to obtain divorces or obtaining annulments in New York.[16] “By the 1950s, New York had the lowest recorded divorce rate in the country, [b]ut the incidence of annulments, migratory divorce, along with separations and desertions, combined to raise New York’s total rate of marital disruption well above the national average.”[17]

With the passage of legislation in 1967, the grounds for divorce were expanded beyond adultery nearly 200 years after judicial divorce was approved in New York.[18] “[T]he law now provided for divorce on the grounds of adultery, cruel and inhumane treatment, abandonment for two or more years, confinement in prison for three or more years, and living apart for a period of two years or more pursuant to an agreement or a judicial separation decree[judgment].”[19] The two year provision for separation conversion into a divorce was reduced to one year in 1970[20] and the time period required for an abandonment claim was later reduced to one year.[21]

No single event caused this great evolution, but rather a multitude of factors combined to cause this change.  These factors included the 1965 Court of Appeals case, Rosentiel v. Rosentiel, which legalized bilateral Mexican divorce.  In Rosentiel, the Court of Appeals criticized the restrictive divorce law in the state as it showed that the rich could divorce, while the poor were unable to procure a divorce without proving adultery or travelling to other locations.[22] Other factors included a report from the Legislature which heavily criticized the divorce law, increased media coverage of hearings which attacked the law as causing parties to perjure themselves to gain divorce, Governor Nelson Rockefeller’s support for expanding the law, the reapportionment of legislative districts which “increased representation by urban legislators,” thereby reducing the power of “upstate Republicans opposed to reform,” and the increased influence of “liberal Catholics,” who with “leading clergy of all faiths, gathered together in vocal support of reform.”[23]

Today, with the two conversion grounds for divorce, the spouse is forced to wait one year after a judgment or agreement of separation.  “[I]n order to obtain [a] judicial decree or judgment of separation a showing of fault is required” and a divorce will be granted only after the parties show proof that they have followed through with the decree.[24] The only ground that is somewhat characterized as no-fault, is when the parties have lived “pursuant to a [mutually agreed to] written agreement of separation filed either with the county clerk or with the court for at least one year.”[25] After the one year has passed, one of the spouses can sue for no-fault divorce based on proof that the agreement’s terms were followed, including “resolution of issues such as custody, property distributions, and alimony which many couples [may] find difficult to work out.” [26]

“The current trend for couples who (1) both want out of the marriage, but (2) are unwilling to wait the required one-year separation term, and (3) have no recognized grounds under which to file, is to allege constructive abandonment based on a failure to engage in sexual relations.”[27] Spouses who do not meet a fault ground or have a spouse who refuses to sign the separation agreement in the absence of no-fault divorce in New York have been forced “to live apart indefinitely without the prospect of a divorce” until abandonment can be raised successfully or a bilateral agreement can be worked out.[28]

No Fault Divorce Comes to New York

In addition to the six mentioned grounds, one now will be able to procure a divorce by stating, under oath, that the marital relationship has “broken down irretrievably for a period of at least six months.”[29] In order to safeguard the financial needs and other rights of spouses and children, no divorce will be granted

“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.” [30]

In addition, no-fault divorce will not become available until sixty days after the legislation is signed and will only affect divorce actions commencing after the effective date.[31]

Similar justifications which were used in the 1960s to expand New York’s divorce law, were announced by the Legislature in expanding the law, including the fact that “many people divorce for valid reasons that do not fall under [the current] classifications” and that people are “forced to invent false justifications to legally dissolve their marriages.” [32] The Legislature noted that “false accusations and the necessity to hold one partner at fault” often results in conflict which is “harmful to the [emotional well-being of] . . .  partners and destructive to the emotional well being of children [because] prolonging the divorce process adds additional stress to an already difficult situation.”[33]

Legislators also cited no-fault divorce’s impact on victims of domestic violence, since this new ground allows victims to get out their marriages without proving fault or relying on a bilateral separation agreement that their partners may not agree to.[34] Legal Aid and the New York Bar Association have also come out in favor of no-fault divorce.[35] These organizations noted that “the process of getting a divorce in New York has often . . . been criticized as taking too long, . . . costing too much in . . . emotional hardship,” and that with the enactment of no-fault divorce, money will be saved by spouses seeking divorces who will not have to pay attorneys to hire experts or private investigators in order to find a basis for fault claims.[36]

While the law has supporters, it also has detractors.  The state chapter of the National Organization for Women (NOW) voiced its opposition to the passage of the law arguing that it “give[s] judges permission to ignore ‘cruel and inhuman treatment’” and that the “mon[ied] spouse (usually the husband) would have freedom to shelter the marital assets, hire an attorney, and start divorce proceedings before his wife ever suspects what is happening.”[37] The Catholic Conference of New York has also stated its opposition to no-fault divorce, arguing that now it will be “too easy to end a marriage” given that “marriage is supposed to be for life.”[38] It has noted that in other states and other countries that have adopted no-fault divorce laws, such as Canada and England, there has been an increase in divorce rates that negatively impact “children, adults, families, and society as a whole.”[39]

Addressing the Opposition

A representative from the Catholic Conference was quoted as saying no-fault divorce “makes it easier to get out of marriage than it is to get out of a cell phone contract.”[40] This categorization of no-fault divorce is misleading, as a decision to divorce is not something a spouse makes on a whim, but rather is made after serious thought, discussion, and sometimes trial separations due to its impact on finances and the parties involved, including children.  Divorce results in a continued connection between the spouses for years, as one spouse will often have to provide maintenance for the other spouse for life or until the other spouse gets remarried.  The former spouses will also have to work together in regards to child custody and child support.  Furthermore, while New York has one of the lowest divorce rates in the nation,[41] having no-fault would not cause the marriage to end immediately resulting in an instant increase in the divorce rate, as a six month waiting period after the marriage has become unsalvageable and testimony under oath regarding the inability to salvage the marriage is required to end the marriage.

NOW’s argument that cruel and inhuman treatment may be ignored as a ground for divorce is valid, but their argument that marital assets would be shielded and the monied spouse can commence divorce proceedings without the other spouse’s knowledge, is mitigated by two other bills passed by the Legislature in conjunction with the no-fault bill.[42] One of the bills establishes uniform guidelines for maintenance given that under the current law, “awards of maintenance differ widely for couples with similar incomes and similar length of marriage” which has been said by the Legislature to “undermin[e] confidence in the judicial system and encourage[e] costly litigation by impeding the settling of cases.”[43] The second bill provides a “rebuttable presumption of interim attorney’s fees to the non-monied spouse in a matrimonial case or in proceedings to enforce a judgment” such as future maintenance which will ensure “all parties can afford counsel from the beginning of divorce proceedings.[44] The bill also “authorizes the court to order expert fees to be paid by one party to the other during the course of the case to enable the party to carry on or defend the action” and further requires “parties . . . to provide financial information to the court to enable the court to make its determination regarding counsel and expert fees”[45]

The New York City Chapter of NOW has noted that “post-marital compensation guidelines . . . are a critical step forward to creating monetary fairness for the non-monied spouse, most often the woman” and that “interim counsel fees . . . create an even playing field by ensuring that the non-monied spouse gains access to marital funds to cover legal fees.” [46] As a result, “no longer will the monied spouse be able to take advantage of the non-monied spouse by being the only one with legal representation.”[47]

Conclusion

Divorce is never an easy process for any of the parties involved.  The emotional impact of divorce affects former spouses, children, families, and friends for a lifetime.  By allowing divorcing couples the ability to claim no-fault after alleging six months of unsalvageable marriage, the Legislature has allowed these spouses to dissolve their marriage in a more efficient manner, rather than forcing them to prove fault or wait a year for a bilateral agreement or separation judgment.  By providing counsel fees, guidelines for maintenance, and ensuring the court will not grant no-fault divorce until maintenance, child support, equitable distribution, child custody, and other issues are worked out, the Legislature has addressed past marital laws which unfairly treated the non-monied spouse, whether a man or a woman.  There is no way to tell how the new law will affect the divorce rate until the law goes into effect.  However, the new law will result in easier divorces by allowing spouses, who do not meet any of the six grounds for divorce, a way to move on with their lives.


[1] Nicholas Confessore &Anemona Hartocollis, Albany Approves No-Fault Divorce and Domestic Workers’ Rights, N.Y. Times, July 2, 2010, at A21, available at http://www.nytimes.com/2010/07/02/nyregion/02albany.html.

 

[2] Id.; Kenneth Lovett and Glenn Blain, New York Legislators Approve No-Fault Divorce, Gov. Paterson Will Likely Sign Bill To Ease Splits, N.Y. Daily News, July 2, 2010, http://www.nydailynews.com/ny_local/2010/07/01/2010-07-01_new_york_legislators_approve_nofault_divorce_gov_paterson_will_likely_sign_bill_.html#ixzz0spfguEPL (last visited July 25, 2010).

[3] Confessore &Anemona Hartocollis, supra note 1.

[4] Id.

[5] J. Herbie DiFonzo & Ruth C. Stern, Addicted to Fault: Why Divorce Reform Has Lagged in New York, 27 Pace L. Rev. 559, 564 (2007).

[6] Id. at 565.

[7] Id. at 566.

[8] N.Y. Dom. Rel. Law § 171 (McKinney 2010).

[9] DiFonzo & Stern, supra note 5, at 567.

[10] Id. at 568.

[11] Id. at 569.

[12] Id.

[13] Id.

[14] DiFonzo & Stern, supra note 5, at 569.

[15] Id. at 570.

[16] Id. at 572–74.

[17] Id. at 576.

[18] Id. at 579.

[19] DiFonzo & Stern, supra note 5, at 579.

[20] Id. at 580.

[21] N.Y. Dom. Rel. Law § 170(2) (McKinney 2010).

[22] DiFonzo & Stern, supra note 5, at 577.

[23] Id. at 577–79.

[24] Gabriella L. Zborovsky, Baby Steps to “Grown Up” Divorce: The Introduction of the Collaborative Family Law Center and the Continued Need for True No-Fault Divorce in New York, 10 Cardozo J. Conflict Resol. 305, 311 (2008).

[25] Id. at 312.

[26] Id.

[27] Id. at 313.

[28] Id.

[29] 2009 N.Y. Sess. Laws § 3890 (McKinney), available at, http://open.nysenate.gov/legislation/bill/S3890A.

[30] Id.

[31] Id.

[32] 2009 N.Y. Sess. Laws § 3890 (McKinney), available at http://open.nysenate.gov/legislation/bill/S3890A.

[33] Id.

[34] New York State Senate Majority Press, Majority Brings Marriage Law Into 21st Century, http://www.nysenate.gov/press-release/majority-brings-marriage-law-21st-century (last visited July 25, 2010).

[35] Id.; Ilya Marritz, No-Fault Divorce Law Passes State Senate, WNYC News, June 16, 2010.

http://www.wnyc.org/news/articles/156153?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+wnyc%2Fnewsarticles+%28News+from+WNYC+New+York+Public+Radio%29 (last visited July 31, 2010).

[36] Id.

[37] Press Release, National Organization for Women, National Organization for Women–NYS Decries No-Fault Divorce Bill S3890a/A9753a; Women Senators Dance as They Throw Women and Children Under the Bus (June 16, 2010), available at http://www.nownys.org/pr_2010/pr_061610.html.

[38] David King, No-Fault Divorce Creates Strange Bedfellows, Gotham Gazette, http://www.gothamgazette.com/article/albany/20100520/204/3273 (last visited July 25, 2010).

[39] Id.

[40] Lovett and Blain, supra note 2.

[41] No-Fault Divorce: Let’s Call The Whole Thing Off, N.Y. Daily News, June 24, 2010, http://www.nydailynews.com/opinions/2010/06/24/2010-06-24_nofault_divorce_lets_call_the_whole_thing_off_why_does_ny_want_weaker_families.html (last visited July 25, 2010).

[42] National Organization for Women, supra note 36; 2009 N.Y. Sess. Laws § 7740A (McKinney), available at http://open.nysenate.gov/legislation/bill/S7740A; 2009 N.Y. Sess. Laws. § 4532A (McKinney), available at http://open.nysenate.gov/legislation/bill/S4532A.

[43] 2009 N.Y. Sess. Laws § 7740A (McKinney), available at http://open.nysenate.gov/legislation/bill/S7740A.

[44] 2009 N.Y. Sess. Laws § 4532A (McKinney), available at http://open.nysenate.gov/legislation/bill/S4532A; New York State Senate Majority Press, supra note 34.

[45] 2009 N.Y. Sess. Laws § 4532A (McKinney), available at http://open.nysenate.gov/legislation/bill/S4532A.

[46] Letter to the Editor, Sonia Ossorio, Letters: A New Path to Divorce, N.Y. Times, June 21, 2010, at A26, available at http://www.nytimes.com/2010/06/22/opinion/l22divorce.html?_r=1&scp=1&sq=ossorio&st=cse.

[47] Id.

2 Comments

Filed under Matrimonial Law

2 responses to “No Fault Divorce: A Look at the Past and Future of New York Divorce Law

  1. Pingback: No-Fault Divorce in New York » Blog Archive » A Look at the Past and Future of New York Divorce Law

  2. Divorce in itself is an unfortunate matter which can represent a stressfull period for anyone. Particularly, financial constraints are one issue which can provide a couple with difficulties, especially when the fee can ultimately become larger than initially thought. Therefore, to counter this, a fixed fee divorce can give a direct outline of costs; meaning any additional extras during the case will not be added. In turn, the couple will be able to budget accordingly.

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