Breaking Up Easier as New York Law Ends Need to Lie

New York Governor David Paterson
David Paterson, governor of New York State. Photographer: Ramin Talaie/Bloomberg

New York just made breaking up easier to do, passing a no-fault divorce law that stands to reduce long, cutthroat court battles over who’s to blame when marriages fail.

The new law permits couples to split without assigning blame for the marriage’s collapse.

“There is a human cost and a financial cost” to a system demanding fault-finding, Robert Ross, supervising judge of the matrimonial division in Nassau County, New York, on Long Island, said before the bill became law. “It’s hard to know what impact a new law will have, but we do know that a grounds trial, and the expense and delay associated with it, is not a good thing.”

The passage of a bill July 1 by the state assembly sent the measure to Governor David Paterson, who signed it yesterday, according his office’s website.

The measure will take effect in 60 days and will govern divorces filed then or later.

Previously, New York was the only U.S. state without no-fault divorce. Spouses disagreed on terms of a divorce couldn’t dissolve their marriage unless one proved the other committed an act such as cruelty, adultery or abandonment.

The result was protracted for some couples, with trials over who was to blame for the dissolution of a marriage, and, sometimes, false claims to make the allegation fit the law.

New York History

New York has a history of lagging behind other states in allowing divorces. From 1787 to a reform bill of 1966, the only ground was adultery.

Under a more recent reform, a couple could get an uncontested divorce after living apart for a year and agreeing to settlement terms. That option wasn’t open to everyone, because many couples agree only that the marriage is over, not on what happens to children and assets.

“You can’t avail yourself of that unless you have an agreement with your spouse on the crucial issues -- on custody, support and monetary issues,” Sheila Riesel of the law firm Blank Rome LLP in New York said in an interview before the latest change.

“This change is going to help either the very poor or the very young,” Suzanne Bracker, who has handled New York City divorces for 20 years, said in an interview that also predated passage of the no-fault act.

“In all of my cases, with the very rare exception, people who don’t contest divorces either don’t have money or are the very young,” she said. “For the young, marriage is just like a long date that didn’t work out.”

Divorce Data

Of 56,937 divorce filings in New York State last year, 43,724 were uncontested and 13,213, or 23 percent, were contested, according to state court system data.

Contested divorces created the possibility of trials, with witnesses testifying on alleged wrongdoing and lawyers attacking the other sides’ credibility.

“By removing the requirement to prove fault, divorcing couples and the courts will no longer have to waste resources litigating on whether a marriage should end, but will be able to better focus on issues such as the welfare of the children, fair division of marital assets and other economic concerns,” New York State Bar Association President Stephen Younger said today in a statement.

The state doesn’t tally how many contested divorces reached trial. Most divorces ended in separation agreements, said Riesel, who said she participated in “precious few” fault trials.

Winking, Blinking

No-fault will allow couples who don’t want to wait out the year to avoid the possibility, she said.

“They are faced with the conundrum: ‘What grounds can I assert if I don’t want to wait a year?’” she said. One strategy, Riesel said, was alleging cruelty or adultery without having evidence of it.

“There is this concern that there is a winking and a blinking at allegations that people have to swear to,” she said

A state commission that studied New York matrimonial law a few years ago reached the same conclusion.

“Fault allegations and fault trials add significantly to the cost, delay and trauma of matrimonial litigation and are, in many cases, used by litigants to achieve a tactical advantage in matrimonial litigation,” the commission wrote in a 2006 report to the state’s top judge.

A trial might last weeks, cost hundreds of thousands of dollars and result in couples’ dragging their children and friends through a public proceeding uncovering details of their private lives, said Ronnie Gouz, a matrimonial lawyer at Berman Bavero Frucco & Gouz.

Weeks of Trial

“It’s not an issue in the majority of cases, but it’s a horrible one in the minority of cases,” said Gouz, who is based in White Plains, New York.

The trials typically lasted from two days to several weeks, said Ross, the Nassau county judge, who said he presided over eight to 12 a year.

“They are never pleasant,” Ross said before the new law was passed. “You are putting two people in the position of pointing the finger at each other and having to defend the finger pointed at them.

“You may have friends called, girlfriends and boyfriends called, people who are alleged to be girlfriends and boyfriends,” the judge said. “Having to sit and listen to these things can sometimes be an overwhelming experience.”

Warring spouses added to the contentiousness if they chose, said Riesel of Blank Rome.

“If you really want to torture the other side, you can make a jury demand,” she said.

Threat of Disclosure

The threat of a fault divorce trial has often been used as a negotiating tool between warring spouses, said divorce lawyer Robert S. Cohen.

When a spouse didn’t want to divorce for religious or other reasons, the threat of a trial airing marital disputes or proving the allegations of fault, might be used as a negotiating tactic paving the way for better settlement terms, he said.

“If no-fault divorce gets passed, it takes this card out of the mix,” Cohen, whose clients have included Christie Brinkley, the model, and James Gandolfini, the actor, said prior to passage.

“For the very wealthy, it takes out a strategic bargaining chip in negotiations for both sides,” said Cohen, who said he handled four fault trials in 30 years of practice.

Matrimonial lawyers advocated no-fault even though it may mean lower fees for them, said Gouz, a past chairwoman of the family-law section of the New York state bar association.

‘Time, Money’

“Trials mean time, mean money,” she said. “It is in our pecuniary interest to not have no-fault divorce in New York. And yet matrimonial lawyers have put their personal pocketbook aside and looked at the issue and said, this is just not good.”

Eliminating “fault” trials won’t rid divorce proceedings of all contentiousness, Riesel said.

“What it does is enable the parties and the courts to focus on the real issues: financial issues and custody,” she said.

Wealthy couples and those who have been together for some time will throw off plenty of work for divorce lawyers, said Bracker.

“For those couples who want to fight over everything, it won’t make a difference,” she said.

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