No-Fault Divorce: An Examination of the Unintended Consequences of New York’s New Law

Written by Jennifer Jack, Albany Government Law Review Member


In October, New York State became the last state in the country to enact a no-fault statute, which went into effect on October 12th, 2010.[1]  New York amended the Domestic Relations Law with the addition of § 170(7), which allows for divorce where “[t]he 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.”[2]  The legislature has articulated that generally a marriage is determined to be “irretrievably broken” and able to become the basis for a no-fault divorce if “either or both parties are unable or refuse to cohabit and there are no prospects for reconciliation.”[3]  In order to make this determination, the standard of “irretrievably broken” is determined by an examination of all the “facts and circumstances, as well as the factors underlying the determination.”[4]  To be deemed to have considered all the facts the court must examine the “subjective state of mind of the parties, because the central inquiry relates to the state of mind of the parties toward the marriage relationship.”[5]  Therefore, any evidence that indicates the “viability of the marriage” becomes admissible.[6]  In New York this evidence can be established through a statement under oath of either spouse.[7]

Burden on the Plaintiff

In New York spouses are now able to terminate their marriage “within six months of stating under oath their union[] [is] ‘irretrievably’ broken.”[8]  This bill states that judges will be allowed to consider all facts they believe to be relevant, even if they are not mentioned in the new law.[9]  Ultimately the plaintiff is required to show four elements: that “the relationship between husband and wife has broken down irretrievably, [f]or a period of at least six months, [p]rovided that one party has so stated under oath,” and “[a]dditionally, the plaintiff likely will need to plead and prove that ‘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.’”[10]  However in drafting this legislation, the legislature has created some possible unintended consequences from this statute that warrant examination, specifically the changes made to alimony awards and possible defenses to the action.

The Possible Consequences of No-Fault Divorce in New York:

The Concern over Alimony Awards

The addition of no-fault divorce to the Domestic Relations Law contains a provision which lays out a formula for use by judges in the determination of the award of alimony to a spouse.[11]  This new addition to the law allows for “only up to $500,000 of a spouse’s income will be counted when determining alimony.”[12]  This is a dramatic change from the previous law that gave judges “broad discretion” in making alimony determinations, allowing them to consider the larger needs of the individual family, as well as the individual financial situation of each family.[13]  Aside from the $500,000 cap on income that will be considered for alimony determinations, the law articulates two formulas judges may consider: the first is “[t]hirty percent of the higher-earning spouse’s income, minus 20 percent of the lower-earning spouse’s income[,]” and the second is “[f]orty percent of their combined income, minus the lower-earning spouse’s income.”[14]  In examining these two formulas the judge will use whichever of the formulas that produces the lower alimony award.[15]

This alimony formula has created several concerns among divorce attorneys across the state of New York.  For example, a spouse who has been married for a significant amount of time, and has been supported by the wage-earning spouse’s large paycheck, will now receive substantially less alimony using the new formulas than would have been available under the previous law.[16]  This allows for the wage-earning spouse to unilaterally divorce his or her spouse, and eliminate any possibility for that spouse to negotiate the amount of the alimony award in exchange for a divorce.  Additionally, the new alimony determination formula makes no mention of any consideration to be given to the length of the marriage.  Therefore, even if a couple was married a very short period of time alimony can be awarded for up to $500,000.[17]

Essentially the law has now created a system in which a spouse of a short marriage could obtain alimony from the other spouse’s entire salary if it is under $500,000, but a spouse of a long marriage where the salary was well over $500,000 would be unable to receive alimony against that salary.  In addition, the law also contains a provision that requires the “higher-earning spouse [to be] responsible for all the legal fees for both sides.”[18]  Therefore, although the lower earning spouse is unable to receive future support, they can be assured that they will be able to litigate their case without concern over the cost of attorney’s fees.  This can, however, give people the means to litigate cases that would normally be settled before litigation because unlike other provisions in the DRL that require each spouse be responsible for legal fees DRL 170(7) removes this burden from the lower earning spouse.  Ultimately, this provision has created yet another reason for unease concerning the court’s monetary award in no-fault divorce proceedings.

Possible Defenses to No-Fault

The addition of the no-fault divorce action to the DRL creates concerns over the possibility of defenses to the action, although statutorily, no-fault divorce should be available should one spouse be willing to swear under oath that the marriage has been irretrievable broken for six months.[19]  However, under Domestic Relations Law § 173, “[i]n an action for divorce there is a right to trial by jury of the issues of the grounds for granting the divorce.”[20]  This means that the spouse opposed to the divorce has a right to litigate the specific grounds alleged for granting the divorce.  The addition of DRL § 170(7) as a ground for divorce does nothing to alter Section 173.[21]  Therefore, statutorily a spouse has the ability to challenge a no-fault divorce action by demanding a jury trial, which seems contrary to the legislative intent to provide a unilateral ground for divorce that does not require any proof of fault.  While this appears to be an inadvertent oversight by the legislature it is yet to be seen how the courts will address this issue.[22]

An additional challenge for those seeking a no-fault divorce in New York is that before the court can grant a no-fault divorce the parties must have already resolved any other major ancillary issues on their own; including: “the equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and expert fees and expenses, and custody and visitation with the infant children of the marriage.”[23]  Therefore, couples seeking a divorce under the no-fault law will only be able to do so if can reach an agreement on all other collateral issue that come with the dissolution of a marriage.  In most cases, this will be a huge hurdle.


Although the statute went into effect on October 12th, 2010 there has, as of yet, been little feedback on whether or not these possibilities have come to fruition in divorce proceedings.  However, it will be interesting to see how judges begin to interpret this legislation that seems to have inadvertently created a defense to a spouse initiating a no-fault divorce and has greatly altered the allocation of alimony.  If the courts allow spouses to demand a jury trial, thereby forcing the extended litigation of a no-fault divorce action, then many of the benefits of having a no-fault divorce statute will essentially have been completely eliminated.

[1] Timothy Tippins, New York Matrimonial Law and Practice § 14:1.10 (2010).

[2] N.Y. Dom. Rel. Law § 170(7) (McKinney 2010).  See generally, Michael Telfer, No Fault Divorce: A Look at the Past and Future of New York Divorce Law, Albany Government Law Review Fireplace(August 2, 2010) (discussing of the evolution of New York State’s divorce law and providing a response to the critics of the law).

[3]24 Am. Jur. 2d Divorce and Separation § 24.

[4] 24 Am. Jur. 2d Divorce and Separation § 313.

[5] Id.

[6] Id.

[7] N.Y. Dom. Rel. Law § 170(7) (McKinney 2010).

[8] Joel Stashenko, No-Fault Companion Bill on Maintenance Raises New Concerns, 244 N.Y. L.J. 1 at col. 5 (2010).

[9] Id.

[10] Tippins, supra note 1, at § 14:1.10.

[11] John Eligon, Concerns on No-Fault Divorce, and a Conviction Stands, N. Y. Times, Oct. 8, 2010,

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Eligon, supra note 11.

[18] Id.

[19] N.Y. Dom. Rel. Law § 170(7) (McKinney 2010).

[20] N.Y. Dom. Rel. Law § 173 (McKinney 2010).

[21] Elliott Scheinberg, No-Fault Divorce, Defenses, Pleadings, Independent Actions, N.Y.  L.J. 4 at col. 1 (2010).

[22] Id.

[23] Adam Hassell-Thompson Sponsors Memorandum, S. 3890 (N.Y 2009) (enacted).

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