New York divorce has now had a
no-fault ground of divorce for more than a year. As a New York divorce
lawyer, I enthusiastically welcomed the advent of no fault divorce,
believing that it would help reduce the cost, stress and general
unpleasantness that is frequently associated with divorce. New York was
the last state in the United States to pass no fault divorce. New York
has also long been famous as one of the most expensive and difficult
places in the United States to get a divorce. Since a year has passed,
it is now time to ask: Did the advent of no fault divorce in New York
live up to its expectations?
broader perspective, it is clear that the process of divorce is still laden
with stress, expense, and unpleasantness for many people. Recently, the Huffington Post had an article advocating prenuptial agreements as a way to reduce the potential conflict, expense and
"heartache" associated with divorce. No
amount of statutory finagling could make divorce pleasant.
advent of no fault divorce, most people in New York used the ground of
"abandonment" or "constructive abandonment" as the grounds for their
divorces. In bitterly contested cases
they occasionally asserted "cruel treatment" as the basis for their
divorce. Very few cases were the subject
of "grounds" trials. In those cases in
which one of the spouses contested grounds, the issue of the ground for divorce
was generally resolved at an early stage of the litigation, and the focus of
the litigation was the financial issues. That has not changed: people still
fight over the financial issues.
In order to
pass the no-fault statute, the New York legislature reached a compromise that
ladled the bill with certain provisions that have, ironically, made the process
of divorce more difficult and expensive for some people. In particular, the
legislature passed a presumptive, mathematical formula for the courts to use in
determining pendente lite
applications for maintenance. The idea
that pre-judgment, temporary maintenance can be determined based on a precise
formula first hit me as a rather bizarre concept. I was not the only New York divorce attorney
with that reaction.
In one of
the first reported decisions that dealt with New York's new temporary
maintenance guidelines, Justice Sunshine (Supreme Court, Kings County) noted
that "[the] new statute poses significant challenges for courts. It dramatically changes the philosophy and
purposes of pendente lite support ...
At the earliest stage of the litigation (pendente
lite) the court is required [by the new statute] to consider factors some
of which can only be established after a full trial and/or extensive
discovery." (See, Scott M. v. Ilona M., 2011 NY Slip Op 21026). Judge Sunshine is diplomatically stating the
obvious: the new statute is absurd and unworkable.
legislature, in order to pass a law that was intended to make divorce easier
(no fault) appended to it a completely unnecessary provision that inflicted a
new burden on the courts. The new burden
was imposed at virtually the precise moment when the New York court system
began its freefall into further chaos and backlogs due to budget cuts. The referees and judicial hearing officers
who, for many years, assisted judges in adjudicating divorce cases were, in a
single fell swoop, terminated. The
result: a backlog of unprecedented proportions. Divorce in New York (at least
in contested cases ) now takes longer than ever before.
divorce lawyer, the focus of my practice is to make divorce less costly and
stressful, while protecting the rights of my clients. I firmly believe that
those goals are possible, and work hard with my clients to achieve such
results. Unfortunately, the New York
legislature has made that task more difficult.
Marc A. Rapaport
New York Divorce Lawyer, since 1995.
Phone: (212) 382-1600