But both sides will still have plenty of issues to argue about.
Syracuse, NY -- One of these days, if Gov. David Paterson signs a bill passed last month by both houses of the state Legislature, New York will become the last state in the country to implement no-fault divorce.
It will complete a 40-year sweep, beginning in California in 1970, of states allowing couples to end troubled marriages without assigning fault to either spouse. Advocates say it’s about time New York made divorce easier, quicker and less painful by eliminating the antiquated rules of proving one party is at fault.
But the sweeping changes predicted by advocates probably won’t come to pass, local judges and lawyers say, because the fighting in divorce cases usually isn’t about whose fault it is, anyway. Three of every four divorces are uncontested, meaning the spouses have agreed not to fight about whose fault it was.
“Grounds are usually the least-talked-about aspect of a divorce case,” said state Supreme Court Justice Martha Walsh Hood, who has been a matrimonial judge in Onondaga County for several years. “It’s usually about the house and the 401(k)s and the children and the debt allocation.”
Under the existing fault law, marriage is treated like a contract that can be broken only if one side breaches that contract. The spouse who wants a divorce must prove one of several grounds: adultery, cruel and inhuman treatment, or abandonment, which could mean the other spouse left home or the couple has stopped having sex.
The current system
Couples can avoid fighting about fault by drawing up a separation agreement and then living apart for a year. The most common grounds is cruel and inhuman treatment, which can include a laundry list of minor or major offenses.
“It could be as lightweight as ‘He was mean to my family and wouldn’t socialize with me and made fun of me in public’ to ‘He tried to kill me seven times,’” said Syracuse lawyer Diana Cunningham, who has handled divorce cases over the past 30 years. “The longer the marriage, the more severe the grounds have to be. For a yearlong marriage, ‘He hated my cooking’ is just about enough to do it. For a 25-year marriage you will need some really bad conduct.”
New York’s new law won’t eliminate fault as grounds for divorce, but will add one: “irretrievable breakdown” of the marriage for at least six months. Even then, a judge can’t grant the divorce until money and child custody issues are settled.
The current fault system encourages out-of-court settlements because it encourages the parties to work out a separation agreement, then wait a year for the divorce to take effect, said Marcia Papps, president of the New York state chapter of the National Organization for Women.
The law will put an end to what has been called “institutionalized perjury,” where a spouse lies about how he or she was treated simply to get the divorce. “It will stop people from lying under oath when they go to court, which is what they do now if they don’t want to wait for a year,” said Minna Buck, a former Family Court judge and a member of the Syracuse chapter of NOW. “If both parties want a divorce and they both agree about custody, and they’ve worked out the finances, for them to have to lie in official court papers breeds a disrespect for the law.”
A low divorce rate
New York has a relatively low divorce rate — it’s tied with Wisconsin and Pennsylvania for the sixth-lowest rate in the country, according to federal government statistics. Each has 2.9 divorces per every 1,000 people. Central New York is about the same, with 3 divorces per 1,000 last year. In 2009, a combined 2,334 divorce petitions were filed in Onondaga, Cayuga, Madison, Oswego and Cortland counties.
Studies show that divorce rates spike in states shortly after the enactment of no-fault laws, but revert to previous levels within a decade or so. Some experts predict a deluge of divorces in New York if the new law goes into effect.
“There are so many people who have been unable to access a divorce based on current law that there is sure to be a rush to the courthouse once this option is available,” said Heidi White McCormick, president of the Central New York Women’s Bar Association.
Fault laws are often used as leverage to get a better settlement — what lawyers and judges call the “divorce premium.” “It really is a big, big issue where there’s a long-duration marriage and someone wants to move on and they don’t have grounds, so they would pay a premium to be released,” Walsh Hood said. “It allows the non-moneyed spouse to get a better deal.”
No-fault divorce has been criticized by women’s advocacy groups, who fear it will remove the leverage women have to get a better settlement from husbands, who generally make more money. In divorce court parlance, the person with the lower income is called the “non-moneyed” spouse.
“The more-moneyed spouse can get an attorney, hide the assets and start divorce proceedings before the non-moneyed spouse knows what’s happening,” Papps said. “She will be blind-sided.”
Better for victims of abuse
Supporters of no-fault say the existing fault law makes it harder for victims of domestic violence to get out of abusive marriages.
“With domestic violence victims, if they do file for divorce based on cruel and inhuman treatment because it is the only option available to them, they must serve the abuser with complaints that specify the details of the abuse suffered, which can in turn cause escalation of the abuse,” said McCormick, who is also executive director of Syracuse University’s Family Law & Social Policy Center. “In addition, the abuser may manipulate the court proceedings to continue to harass and control the victim.”
No-fault could reduce the hard feelings between spouses when one has to make allegations against the other in court papers and on the stand, said Marilyn Westlake, a Syracuse lawyer who has handled divorce cases for more than 30 years. Being forced to accuse a partner of adultery or cruelty can make a difficult situation much worse for the entire family, she said.
“The emotional reaction to what a lawyer puts in writing can have effects on the children because it has an effect on your relationship with your spouse,” Westlake said. “It’s tough to get those words on paper out of your mind.”
Even when parties agree on fault, the fighting in court can be brutal. Lawyers grill spouses on cross-examination about their work histories or income or how much they spend each week on commuting. They battle over pensions, pay stubs, health insurance, and which spouse gets the children on which weekends. Under no-fault, it would be almost impossible for one party to stop the divorce even if the other spouse denies that the marriage has broken down.
“Most judges don’t see any point in maintaining a matrimonial relationship when one party is saying it’s over,” said Richard Alderman, a lawyer who has done almost exclusively divorce cases for the past 30 years.
Give marriage a chance
While getting out of a bad marriage easier and faster will be good for many people, Cunningham, who has handled hundreds of divorce cases, is ambivalent about the change.
“By having grounds, people give it a lot more thought,” she said. “It’s sort of shocking how easy it is for people to say, ‘I want a divorce.’ People come in here and you speak to them for an hour or two, and you’re not seeing any reason why this marriage can’t stand and why they can’t work it out for themselves and the children. You ask what has the other side done for you to want a divorce, and they just go blank and can’t give a reason.
“I would like to think we hold marriage in high esteem and don’t think it should be tossed aside easily.”
Contact Glenn Coin at gcoin@syracuse.com or 470-3251.