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]

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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]

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