Position Statement – 2010
A.9753 (Bing) / S.3890 (Hassell-Thompson)
The time has come to enact no-fault divorce in New York. Supporters include the judiciary, members of the matrimonial bar, advocates from the domestic violence community, and most importantly, matrimonial litigants themselves. Parties who have endured costly and lengthy court battles, depleting their monetary and emotional resources, have long cried out for necessary remedies to this archaic system.
Opponents of no-fault divorce ague that change in New York’s divorce law is unnecessary and even undesirable because it presently allows couples to reach consent agreements after living apart for a year, a desirable “cooling-off period”. However, this is often not a suitable alternative for all divorcing litigants. Consider, for instance, a victim of domestic violence in a long-term marriage who may not be able to afford the cost and expense of a grounds trial, but has no desire, for her or her children’s safety and welfare to remain married to her batterer. Forcing her to endure a “cooling-off period” is not appropriate. Nor is it appropriate to force her to incur thousands of dollars in legal expenses for a grounds trial to obtain an immediate divorce. Alternatively, permitting her to commit perjury to claim a “less offensive” ground for divorce is also inappropriate.
Some opponents to no-fault divorce assert that women in abusive marriages or parties considered the “non-moneyed spouse” will be hurt by no-fault divorce laws by preventing courts from considering evidence of domestic violence in matters relating to child custody, child support, spousal maintenance and equitable distribution. This is simply not true. To eliminate grounds would in no way bar women from presenting the facts of domestic violence.
Under current law, the fault grounds for the divorce have little or nothing to do with the resolution of support, custody and equitable distribution. Child support is ordered in accordance with a statutory formula that does not include any consideration of the fault ground for the divorce. Custody is determined according to the best interest of the children. In instances of domestic violence, the statute requires the court to consider such a finding in its award. Financial and property issues are governed by the law of equitable distribution, which allows the court to consider any and all relevant factors in ordering the division of assets. Contrary to the claims of opponents of no-fault divorce, none of the laws relating to support, custody or equitable distribution is linked in any way to the requirement of providing grounds. Further, not one of these laws would be changed or affected by the enactment of no-fault divorce in this state. Rather, the only thing that would be eliminated would be the ability of batterers and others who enjoy financial or other advantages over their estranged spouses to force their victims to waste scarce time, money and emotional resources trying to prove grounds.
By enacting no-fault divorce legislation, litigants to matrimonial matters will be better able to focus their time, energy and finances on the issues that matter most to their lives, custody, child support, spousal maintenance and equitable distribution. It is the ability of New York citizens to conserve their financial and emotional resources that better serves all litigants to matrimonial proceedings. With a rational and educated voice in support of no-fault divorce, the lives of all New Yorkers will be vastly improved.