On October 12, 2010 NY has finally joined the other 49 states, when our version of the ‘No Fault’ went into effect. For the most part, this is generally good news for anybody out there who is looking to get divorced.
California initiated the no-fault divorce movement in 1969. Several states quickly followed, and by 1985 all states but New York had some form of no-fault divorce law in place.
This statute will now eliminate the need to come up with any grounds, when one may not exist. I say for the most part, because there are some side issues that are also being introduced with this same legislation, that may or may not be good news for you depending on the financial situation of your marriage. Let’s take a closer look at New York’s new No Fault divorce statute.
The actual language of the No Fault statute reads “The 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”. This will not replace the former six grounds; rather the No Fault will be merely another option, or ground number seven. Therefore, if your situation falls under the previous six grounds, you may still proceed under those facts.
In plain English -
In the past New Yorkers who did not prove fault had to be separated for at least one year before becoming eligible to file. Under the new law spouses are allowed to terminate their marriages within a period of six months after declaring that their marriage is “irretrievably” broken down.
If one of the parties in a marriage wants to get divorced, they may now do so without having to accuse the other party of things that may or may not have happened. This should eliminate a lot of the mudslinging that has traditionally gone on in New York divorces.
Now for the rest of the story…
Unfortunately, grounds were only the first hurdle in a traditional divorce. True, with the new legislation those issues will no longer be a factor. However, the distribution of assets, the maintenance of monthly bills during the pendency of the action, the custody of children and the awards of child support are still very much factors that need to be decided. For these reasons, as great as the No Fault divorce legislation is, it only really addresses step one of the process.
Among the arguments against no-fault divorce are that it leads to higher divorce rates, and that it does not provide equal bargaining powers with respect to gender. Proponents usually argue that fault-based divorce leads to perjury in court when spouses create excuses for divorce. Like any family law issue, the debate over fault versus no-fault divorce is a very heated one
The baggage that comes with the new legislation is mandatory awards of spousal maintenance and legal fees. These are items the new legislation mandates that the ‘moneyed spouse’ pays to and for the ‘non-moneyed spouse’. These awards become formulaic and virtually automatic with the new system, despite having the No Fault ground. This is the reason I mentioned in the beginning that No Fault is good news for the most part. It really depends on which side of the equation someone falls under.
As with anything new, our legal system will have to go through a trial and error phase until all the details are ironed out. Please give me a call if you feel like the No Fault divorce is something you would like to know more about.