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

Written by Jennifer Jack, Albany Government Law Review Member

Introduction  

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]

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Are You My Mothers: Parental Rights for Same-Sex Partners Under New York Law

Written by Emily Ekland, Albany Government Law Review Member

Introduction

New York law as it applies to same-sex partner rights is ambiguous.  We know that same-sex partners do not have the same rights as married individuals, however, it has yet to be decided whether New York would be willing to recognize civil unions and same-sex marriages from other states in divorce actions.[1] In 2010, the New York Court of Appeals cleared up some questions involving parental rights and responsibilities of same-sex partners who bring a child into their relationship.  Today, a same-sex partner can be chargeable with child support, but does not have parental custody or visitation rights under New York law.  These two holdings may appear contradictory, but the requisite law of New York State validates them.  This is a discussion of the case law presented to the Court of Appeals in 2010 regarding same-sex partner rights.

H.M. v. E.T.

According to the record on appeal, H.M and E.T. were romantically involved for six years, from 1989 to 1995, and were living together for the majority of those years.[2] While both women had discussed having a child early in the relationship, they did not conceive until 1993.[3] Prior to H.M.’s pregnancy, the two discussed child rearing practices, methods of contraception, and whether to raise the child with E.T.’s other children.[4] In 1994, H.M. gave birth and both women accepted responsibility for the care of the child.[5] Shortly thereafter, the relationship ended and the two parties separated.[6] E.T. continued to sporadically provide monetary support for the child, even after a failed attempt to reconcile with H.M.[7]

Continue reading “Are You My Mothers: Parental Rights for Same-Sex Partners Under New York Law”