New York State Should Permit No-Fault Divorces

New York State should adopt a unilateral no-fault ground for divorce so that a marriage can be dissolved upon a showing of irreconcilable differences and without the need to provide marital misconduct as a basis for the divorce. In 1969, Ronald Reagan, then Governor of California, signed into law the Nation’s first No-Fault Divorce statute. Within ten years, most states had approved some form of no-fault divorce legislation. To date, New York has been alone among the states in refusing to adopt a grounds for divorce that would permit a marriage to be dissolved without proof of fault when only one party wanted out. Without such a provision, New York’s current divorce law is arguably the strictest in the Nation. It is time for New York to join its sister states in permitting more accessible divorce.

A spouse seeking a divorce in New York must prove either cruel and inhuman treatment; abandonment for at least one year; adultery; or imprisonment for at least three years. These are the fault grounds for divorce. There are two “separation” grounds for divorce, one of which requires a finding of “fault” to obtain a “Decree of Separation” and the other requiring a “Separation Agreement”. Even when a separation ground is established, one party must then sue for divorce based on a showing that the terms of the Decree or Agreement were carried out for a full one year or more.

Under pressure from several strong lobby groups, the State Legislature has to this date refused to adopt No-Fault legislation. Some groups, for religious or philosophical reasons, argue that a no-fault divorce law will further undermine the institution of marriage. Research does not support this position. The rates of divorce cannot be tracked to any particular state’s “no-fault” statute. Marriages break down for many reasons and many are through no fault of either spouse. Every newly married couple’s ideal to have a healthy, lengthy, and supportive marriage is an ideal not always realized. Giving recognition to this fact does not damage the institution of marriage. As long as couples believe themselves to be in love and ready to commit themselves to the ideal of marriage, the institution of marriage is in safe hands. I often tell clients who are not the proponent in a divorce that although they may be able to defeat their spouse’s cause of action, they will never be able to force their spouse to continue in a marital relationship as marriage is intended. No legislature or court can instill love and commitment in an unwilling spouse. Keeping one bound in a legal relationship which has both social and economic repercussions is unfair and potentially damaging to all family members. Keeping spouses bound does not repair a relationship that is not working.

Bad marriages create an environment which is unhealthy for both spouses and which can become unsafe for the female spouse in particular. A study conducted by the Stanford Business School finds that domestic violence, suicides among women, and spousal homicides of females decline immediately after a state implements unilateral divorce. Suicide among women declined 6% within the first five years and 20% within the first 20 years post adoption. The study found that during the period 1969-1983, domestic violence decreased in states permitting No-Fault divorce and increased in states which did not permit No-Fault divorce. Women victims of spousal violence declined by 1.7% from 12.8% in states adopting No-Fault in the same period that spousal violence against women increased 2.5% in states without No-Fault divorce. The percentage of husbands abused by their wives increased in the states without No-Fault, yet remained the same in No-Fault divorce states. During the same period of time in those states allowing No-Fault, there was a decline in wives murdered by their spouses, but no change in husbands murdered by their spouses. No-Fault laws provide a safety valve for those trapped in an unhealthy or unsafe marriage.

Following a divorce, the income of women generally goes down and the income of men generally increases. This unfortunate truth has led several advocacy groups for women to question whether eliminating fault from the divorce statute would be in a married woman’s best interest. They argue that if a husband wants out of a marriage, his wife may be able to use the absence of a valid fault basis as leverage to negotiate a more favorable financial settlement. Experienced matrimonial practitioners will tell you that this rarely occurs. The fact that women are generally in a less favorable financial position after a divorce is not a function of a No-Fault statute so much as a failure on the part of the judiciary to equitably distribute marital income and assets, to enforce court ordered support, and to award legal fees to the financially disadvantaged spouse. The fact that there are more judges who are men than judges who are women deciding these cases may also be a cause for this disparity.

Unilateral divorce will benefit a financially disadvantaged spouse. In more marriages than not, the wife is the primary custodial parent and the husband earns the higher income. New York is surrounded by states which all offer a unilateral divorce. When a man cannot prove a fault ground, he is more free to relocate his residence to any of the states contiguous to New York in order to obtain a divorce. The wife is not so free to relocate. Her relocation would involve relocating the residence of the children. Convincing a court to allow the relocation of the children is difficult. In addition, the expense of the relocation is an expense she may not be able to afford. This spouse is presented with the cruel and untenable choice of relinquishing primary custodial care of the children in order to relocate to a no-fault state. This inequity cannot be what the authors of the current statute had envisioned.

Elimination of the unnecessary costs generated by fault contests is yet another reason for the adoption of “no fault” language to New York’s divorce statute. Though the number of fault trials as a percentage of overall divorces is small, the actual number is not insignificant. These fault trials consume court resources, Judges' time, and needlessly drive up the costs of litigation to the spouses. No one is served by such a system.

The Family Law Section of the New York State Bar Association is supporting proposed legislation now before the New York State Legislature to amend New York’s divorce laws to permit a unilateral No-Fault ground for divorce. If you have an opinion on this issue, I urge you to contact your Assembly person and State Senator.

Stephen C. Prudente, Esq.
Maynard, O’Connor, Smith
& Catalinotto, LLP
6 Tower Place
Albany, NY 12203
(518) 465-3553