No fault divorce in NY!

New York is one of my favorite places. It makes me feel alive and connected to the world. I love that it is place that sets the trends, fashions, and finances for the rest of the country. But how is that it JUST now is finally becoming a "no fault" divorce state! For those of you who are not up on the legal implications, here is a brief description: "No fault" divorce basically describes any divorce where the spouse asking for a divorce does not have to prove that the other spouse did something wrong - i.e. "where the dissolution of a marriage does not require a showing of legal wrong-doing by either party".

Laws providing for no fault divorce allow a family court to grant a divorce (in response to a petition by either party). The person bringing the petition doesn't have to show a breach of the marital contract (e.g. infidelity or other kinds of wrongdoing). Laws providing for no fault divorce limit the potential legal defenses of a person who would prefer to remain married. Put simply, it doesn't matter if you cheated, if you lied, or if you are a piece-of-work, it means you are getting divorced and no one cares why or who is to blame.

A fault divorce: required grounds are present and at least one spouse asks that the divorce be granted on the grounds of "fault". Only some states still allow fault divorces. The traditional fault grounds are cruelty (inflicting unnecessary emotional or physical pain) -- this is the most frequently used ground for divorce.  Other grounds are things like adultery, desertion for a specified length of time, confinement in prison for a set number of years, physical inability to engage in sexual intercourse (if it was not disclosed before marriage).

A critical difference between fault and no fault is that one spouse cannot stop a no fault divorce (objecting to the other spouse's request for divorce is itself an irreconcilable difference that would justify the divorce); whereas a spouse can prevent a fault divorce by convincing the court that he or she is not at fault. California was the first no fault divorce State (as of January 1, 1970). By 1977 nine states had adopted no-fault divorce laws. By late 1983, every state but South Dakota and New York had adopted some form of no-fault divorce. South Dakota then adopted no fault divorce in 1985. New York was basically the last hold-out.

The National Organization for Women (NOW) sent out a Press Release last week asserting that this law will give judges permission to ignore "cruel and inhuman treatment" as grounds for divorce. Consequently, they say, moneyed 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. NOW has asserted that judges routinely ignore domestic violence in NY and that this law would rubber stamp the practice.

Currently 95% of all divorces are settled out of court in NY. So perhaps the support no fault is  supported by the NYS Bar Association and the NYS Women's Bar Association is because their members will gain monetarily from the move, which will drive more cases into the courts? So why choose a fault divorce option when you have a "no fault" option? Some people don't want to wait out the period of separation required by their state's law for a no fault divorce. And, in some states, a spouse who proves the other's fault may receive a greater share of the marital property or more alimony.

But what about this... Without having fault and blame, there may be little need to work hard on the marriage. A person who wants to call it quits can -- quite simply and easily, too. As a matter of fact, it is probably harder to fire someone at work than it is to get divorced. At least in the office, employers create paper trails, look for reasons to dismiss, have conversations and meetings about whether all avenues have been exhausted before firing is a necessity, and even use probationary periods to try to determine how unworkable a person or a situation before simply canning the person.

Are we letting people off the hook to easily? Is NO FAULT the best way? What do you think?

1 comment:

  1. Perhaps I should have married you, but mom always said "don't marry a lawyer!"

    In my case, no fault is the reality. It's really nobody's fault, so despite a lot of marital therapy, we can move forward amicably without having to accuse each other of some malice, where there is none.

    Clearly not something everybody who reads your blog will experience, but it's likely to be the fairest way for us to unravel our lives together.