New York Divorce: NY Marks the One-Year Anniversary of the Advent of No Fault Divorce

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?

From a 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.

Before the 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.

The 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.

As a 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

http://www.RapaportLawFirm.com

New York Divorce Lawyer, since 1995.

Phone: (212) 382-1600

New York Divorce: Ny Marks The One-year Anniversary Of The Advent Of No Fault Divorce