New Legislation Brings No-Fault Divorce to New York

January 22, 2011

In 2010, Governor David Paterson signed a bill allowing no-fault divorce in New York, bringing the state's divorce laws into alignment with the rest of the country. Couples are no longer forced to demonstrate wrongdoing or abuse in the marriage in order to obtain a divorce, and can instead dissolve marriages "when the relationship between husband and wife has broken down irretrievably for a period of at least six months."

As Gov. Paterson told the New York post, the change brings the state's divorce laws into the 21st century and offers a solution to "a broken process that produced extended and contentious litigation [and] poisoned feelings between the parties."

Traditional "Fault" Grounds for Divorce in New York

Previously, even when both parties wanted a divorce it would only be granted based upon one of five grounds:
- Abandonment for at least one year
- Adultery
- Cruelty, meaning cruel and inhuman treatment that endangered the physical or mental well being of a spouse
- Imprisonment for three or more consecutive years
- Conversion of a separation agreement after one year

To be granted a judgment of divorce, one spouse would have to demonstrate that the other was at fault, which can be a costly, time-consuming and emotionally draining process. A single trial might last weeks and cost the couple hundreds of thousands of dollars.

The New "No-Fault" Grounds for Divorce

The new law does not replace these grounds, but instead provides a no-fault alternative to these grounds.

To obtain a divorce based on this new no-fault ground, one spouse must state under oath that the marriage has broken down irretrievably for at least six months. The statute does not define the phrase "broken down irretrievably," though it is generally assumed that this means the spouses have irreconcilable differences or have become incompatible and are unable to continue living with one another.

In addition to asserting that the marriage is irretrievably broken, to obtain a divorce on this basis the divorcing couple must have resolved the ancillary issues: the equitable division of marital property, spousal support, child support, child custody, and the payment of attorney's fees and expert fees.

The new law allows spouses to divorce by mutual consent or allows one spouse to divorce the other unilaterally.

Consequences of This Change

Opponents of the law express concerns that the change will lead to an increase in divorce rates. Supporters say it will end institutionalized perjury by allowing couples the opportunity to divorce without being required to make accusations of fault. In many cases, the old standards led spouses to lie about grounds in order to get a divorce.

Eliminating the fault requirement means that divorcing spouses can focus on the welfare of their children and the fair division of marital assets rather than who should be deemed responsible for the divorce. Spouses are no longer required to accuse each other of wrongdoing in order to walk away from the marriage. Instead of focusing on the past and allocating blame, the spouses can focus on moving forward in a productive manner as individuals.

Additional Changes to Laws Governing Divorce in New York

Certainly the enactment of no-fault divorce in New York constitutes a significant change to state laws, and this change has received a great deal of media attention. However, this is not the only change to divorce laws in the state.

In addition to creating no-fault divorce, the legislature enacted guidelines for temporary maintenance while a divorce action is pending and established the presumption that the less monied spouse should be granted attorneys fees in a divorce, to protect the spouse who is less financially secure. The legislature also changed the circumstances that warrant the review and modification of a child support award.

Some contemplating divorce may have feared prolonged litigation or monetary consequences; these spouses should speak with an experienced family law attorney to discuss their options under the new law. Whether proceeding amicably or moving toward contentious courtroom litigation, a lawyer can help to protect property rights and parental interests throughout the divorce.

Article provided by Myburgh Law PC
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