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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The Fate of the Marital Union: Is DOMA Approaching Its Last Day?

Written by Lisa Alexander, Public Relations Chair, Albany Government Law Review

Introduction

DOMA’s days might be numbered.  U.S. Attorney General Eric Holder recently announced that the Department of Justice (DOJ) will no longer defend the constitutionality of the Defense of Marriage Act (DOMA) in court.[1] While the DOJ will continue to appear in litigation and “represent the interests of the United States,”[2] it will no longer argue that Section 3 of DOMA is constitutional as it is applied to same-sex couples.[3] This decision has sparked heated debate and a flurry of proposed legislation.  Though riddled with controversy, the facts support that the executive made an appropriate, and arguably necessary, decision.

A Brief History of DOMA

The Defense of Marriage Act was enacted in 1996.  The crux of the current controversy is Section 3, which defines marriage as a “legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.”[4] DOMA was enacted, at least in part, as a response to Hawaii’s Supreme Court decision Baehr v. Lewin.[5] In Baehr, the court found that while the applicant same-sex couples did not have a fundamental right to marry pursuant to the right to privacy, they could argue their equal protection theory on remand.[6] The possibility that homosexual men and women might attain a marriage license in Hawaii and that their home states would have to recognize the unions’ legality under the Full Faith and Credit Clause was too much for Congress to bear. DOMA easily passed through both the House and Senate and was signed into law by President Bill Clinton.[7]

The legislative record illustrates Congress’ judgments about the definition of marriage and the morality behind it.  Some members of Congress firmly believed that marriage could only be between a man and a woman.  For instance, Representative Barr remarked that “[M]arriage throughout the entire history of not only our civilization but Western civilization has meant the legal union between one man and one woman.”[8] Others emphasized that the homosexual marriage question was a moral one, and that such marriages were morally wrong.  Representative Hoke remarked:

One of the things that was said during the debate that I think is probably the most preposterous . . .  is that Congress has no business legislating morality . . . The fact is that we legislate morality on a daily basis. It is through the law that we as a nation express the morals and the moral sensibilities of the United States, and what is morality except to decide what is right and what is wrong? That is what morality is all about.[9]

Continue reading “The Fate of the Marital Union: Is DOMA Approaching Its Last Day?”