Wednesday, June 16, 2010

New York Divorce Law: NO-FAULT DIVORCE

New York is the last state in the United States to not have No-Fault divorce. Yesterday’s blog post discussed the grounds one must prove to obtain a divorce in NewYork. However; the New York State Senate pushed New York closer to modernity on Tuesday by approving legislation that would permit couples to separate by mutual consent, a major shift with sweeping implications for families and lawyers.

In a recent New York Times Article, it states, “The new legislation still has to pass the State Assembly, which is considering two bills that would include some version of no-fault divorce. But advocates said Tuesday that they believed that victory in the Senate…gave the measure momentum and a high likelihood of gaining approval in the Assembly…” (Issue: June 15, 2010, by Nicholas Confessore).

So as a Divorce attorney in New York, I sit and ponder what implications the passage of such legislation will have on my clients and on my practice. So, here are some thoughts on the subject:

Affects the passage of No-Fault laws in New York would possibly have:


a) Less emotional and mental harm to children, because they would not be pitted in the middle of the parents, would not have to choose sides, and best of all would not have to testify as much in court regarding the fault of one parent. Conflict between the parties would probably decline.
b) Other states have reported that moving towards No-fault divorce lessens the case-load of the Court and shortens the time it takes to obtain a divorce.
c) Would reduce the need for lies, perjury, and deceit to be a part of the divorce system in New York because financial settlements would be based on standard of living, contributions to family finances, need and ability to pay.
d) Certain clients, especially ones in marriages with domestic violence, will feel empowered to file for divorce and be able to get out of the marriage easier. It is very scary for some individuals to have to stand up in court, plead and prove cruel and inhuman treatment. Also, it is very embarrassing for most clients to state that they were either abandoned or that their spouse refused to have sex with them, constructive abandonment.
e) For attorneys the divorce would be more manageable, predictable and settlements would be easier to come by.


a) No-fault divorce gives more power to judges in deciding issues such as splitting up marital assets, custody, and spousal support – because there is no fault, the judge may use his full discretion without considering any fault.
b) Makes divorce much simpler, because no-fault eliminates one-parties control to object to the divorce. The party has no chance to fight the grounds and thereby lose a chance to save the marriage.
c) In custody decisions it will be harder to determine which parent is the fit parent if fault is not an issue. The court may not get a chance to hear of abuse or unfitness due to “fault” not being an issue.

In conclusion, I believe that even though some attribute the high rate of divorce on No-Fault Laws making it too easy to get a divorce, I attribute lots of individuals remaining if unhappy and unhealthy marriages due to stringent fault laws in New York. I believe No-Fault laws will free a lot of individuals and provide them with more of a choice over their own lives. I believe, the court in New York will not abandon the “Best Interest of the Child” standard for deciding custody and will still decide whether a parent is fit or not, having nothing to do with “fault” necessarily. Every divorce attorney in New York realizes that because of the amount of couples agreeing to a ground just to get a divorce, even if that ground is not absolutely true, that even though New York has fault laws, the fault of one party typically does not have that much impact on the separation of property or spousal support decisions.

I believe that the parties to a divorce should decide their own fate, rather than having a stranger, the judge, decide it for them and should try their best to come to a settlement. Realizing that no-fault laws may make this more possible makes me believe that No-Fault in New York is the way to go.

Please share your comments and opinions with the above; I would love to hear them!

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @

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