The need for a divorce without fault


In 2010, New York added a “no-fault” basis for divorce, also known as DRL Section 170.7. This addition allows a spouse to file for divorce based on his acknowledgment under oath that the relationship between the spouses has broken down irrevocably for at least six months.

Oftentimes, indisputable and infallible are terms interchanged by the general public but they are very different. Uncontested divorces, those in which the parties have already entered into a settlement agreement to resolve all economic and custody issues, are as common across the country as a separate cause of action, as they once were here in New York.

Prior to listing “irreparable breakup” as a reason to file for divorce in New York, New York had grounds for separation of divorce that required that the couple not live together for at least one year and have an enforceable separation agreement. New York and many other states still have this legal reason to operate. While all states have provisions for uncontested divorce, these laws require that economic and custody issues be fully resolved by written agreement before a divorce can be granted. If the parties cannot come to an agreement, they will bear the burden of having to prove fault in order to resolve the matter through litigation and successfully obtain a divorce. This burden can be costly, financially and emotionally, for the divorcing couple and negatively affect any children caught in the middle.

Some states allow the cause of the breakdown of the relationship to be determined as a relevant factor in determining spousal support and equitable distribution, even if it is a “no-fault” situation. As we move further away from the era of fault-based divorce in New York, the focus has shifted to resolving economic and custody issues. In New York, cause of collapse is considered in a limited manner with respect to squandering of marital assets or financial misconduct during the marriage under DRL Section 236 points. B(5)(d)(14), as any other factor the Court expressly considers to be fair and appropriate. This consideration provides protection to spouses who are victims of financial abuse by the other spouse without having to also sue for the fault component of the breakup. This is a logical and reasonable approach to addressing the appropriate solution to dissolve the economic partnership between the two parties without the need for toxic effects of their relationship to be transferred to the courtroom.

Recently, legislation has been introduced in some states to eliminate no-fault divorce under the misconception that forcing individuals to remain married protects the institution of marriage itself, regardless of violent or abusive circumstances in the home. Referring to divorce for harm does not serve any logical interest. Having to prove fault fails to remove the emotional reactions of the parties that could affect their ability to consider reasonable agreements. Additionally, annulment of no-fault divorce removes a crucial form of protection and escape for couples who are victims of financial, verbal, and physical abuse.

Forcing an abuse victim to file a lawsuit against a controlling spouse who seeks to prevent her from leaving the marriage adds an additional financial barrier for victims and perpetuates toxic environments. Where there are children, their constant exposure to these toxic environments causes well-documented damage to their mental, emotional and general health, not to mention horrific situations involving physical abuse of children as well.

Moreover, proving fault is a more costly option for the parties and the state. This will cause already overworked courts to file heavier matrimonial litigation cases, thus increasing costs and expenses within the judicial system and the state itself. Aside from the financial burdens, there is an increasing impact on the mental health of the parties and the impact of protracted and worsening conflict on children. It is reasonable to expect an increase in heat in custody disputes, which is even more likely when both parties have to point fingers at each other in the courtroom in order to resolve their marital property. In addition, this must be analyzed in light of the state’s direct interest in the social situation and public policy-making.

The National Bureau of Economic Research reported that suicide rates among women decreased by 20% with the implementation of the no-fault divorce principle, starting in 1969 in California under the leadership of the then California governor. Ronald Reagan. There was another significant decrease in domestic violence against men and women, as well as the killing of women by their husbands. All of this has been well researched and documented as being directly related to the availability of a no-fault divorce for decades. As such, it is almost certain that if states return to fault-based divorce, these appalling statistics will increase. While it may seem logical to maintain the no-fault divorce option, any arguments in favor of legislation that removes these causes must address the inevitable rise in cases of domestic violence and self-harm, as well as the mounting emotional and financial costs. Fault-based divorce, which is hopefully an impossible barrier to remove.

Leslie Silva She is a partner in the Albany office of Tully Rinke, where she practices family, marriage, and education law. Silva has represented individuals in all areas of family and marriage law, with particular expertise in high value matrimonial litigation. It can be accessed at (email protected) or at 888-529-4543.


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