NY Must Enact No-Fault Divorce Law

On June 20, 2010, New York newspapers reported on a proposed State law that would allow for No-Fault Divorce. According to newspaper reports, this proposal is opposed by the Catholic Conference and the National Organization for Women. (NOW). On this same date, the NY Governor, David Paterson, appeared on radio and expressed uncertainty whether No-Fault divorce would become law. Governor Paterson stated that there was opposition to this law by Statewide attorneys.

No-Fault Making Divorce Too Easy?

I am unsure what common thread unites NOW, the Catholic Conference and matrimonial attorneys. Over the years, opposition to No-Fault laws has been premised on the assumption that such laws make divorce easier and lead to an erosion of family stability. I do not agree with such an assessment. Furthermore, there are substantive reasons for promoting No-Fault divorce. These reasons involve the integrity of the legal system and the need for a passionate approach to divorce law.

No-Fault Prevents Much Unnecessary Trouble

In No-Fault states, a Plaintiff may still seek divorce on grounds of fault such as desertion, cruelty, and adultery. No-Fault divorce is simply a recognition that a party seeking a divorce need not have barriers placed in their way by requiring a trial on the issues. While it may be true that "A diamond is forever" marriages are not so fortunate. Statistics show that more than half of all marriages will eventually wind up in divorce. Why make it difficult to get divorced when there is no reason to believe that the marriage can, in any event, be saved? No-Fault divorce does not encourage divorce; it simply allows the marriage to be dissolved with dignity.

Divorcing in a Fault State

I began my practice of law in a State that had not yet adopted No-Fault divorce. Did attorneys have a difficult time in finding grounds for divorce? No. Often, divorces were granted on grounds of cruelty. But according to State law, cruelty needed to be proven by physical manifestations. This posed no problem as attorneys were accustomed to ask their clients if their spouse's "cruelty" led to sleepless nights, headaches, stomach upsets, etc. In other words, the clients knew what they had to aver to get their divorce. They simply followed their attorney's lead in acknowledging the cruelty they received and the physical symptoms they had "endured". No-Fault divorce does away with such gamesmanship and legal semantics. The legal system, attorneys, and clients all gain when such coaching becomes unnecessary as a prelude towards attaining a divorce.

No-Fault Does Away with "Finding Fault"

No-Fault divorce does away with the need for a finding of "fault" in order for a divorce to issue. Divorces based on allegations of "fault" often involve dramatic and racy allegations. Think for a moment what an allegation of e.g. adultery will do to the parties and their loved ones. (The same anlysis is true with allegations of desrtion, cruelty, intoxication, etc.) Children are often caught up in the web of tales and revert often to siding with Mother or Father. The shame that attaches to the the children of the alleged adulterer can be devastating. Does anyone doubt, for example, that the children of John Edwards must live with feelings and judgments about thaeir father that serve no constructive purpose. It is tantalizing to assert adultery as a cause of divorce, but towards what ends? No-Fault divorce makes such allegations totally unnecessary. If No-Fault divorce does no more than protect the sensitivities and needs of the couple's children, it has justified its existence.

Trial May Affect Good-Will

Divorces based on "fault" require testimony and fact-finding. When there is a trial of this sort, any residual good-will between the parties will quickly dissolve. (This concern is the reason so many have advocated for divorce mediation as the proper form of reaching a divorce agreement.) How will such a couple be able to co-parent their children, post-divorce. Studies on the effect of divorce on children provide the sad response to this question.

No-Fault divorce recognizes the need to leave important decisions surrounding divorce to the parties involved and not to the State. It is a system that does not encourage coaching, grandstanding or playing the deadly game of "I Gotcha". No-Fault divorce eliminates unnecessary trials, clears Court dockets, and spares parties and their loved ones from unnecessary trauma and confrontation.

It is my hope that New York will soon conclude, as neighboring New Jersey did a few years ago, that No-Fault divorce provides a civil and proper way of governing divorce. The enactment of No-Fault divorce in New York will be a gift to the State's citizens.

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