Joanna L. Grossman

New York's Legislature Is on the Brink of Adopting True No-Fault Divorce: What the Change Would Mean for Unhappy Couples

By JOANNA L. GROSSMAN
Tuesday, June 22, 2010

For years, New York legislators have been talking about reforming the state's antiquated divorce laws, which, alone in the nation, require most couples to prove a specified form of marital fault in order to earn a decree of divorce. In 2004, the then-Chief Judge of the New York Court of Appeals, Judith S. Kaye, called for comprehensive review of divorce litigation, including a review of the fault-based system. That same year, the New York State Bar Association recommended the adoption of true no-fault divorce. Yet, still, not a single no-fault bill has ever successfully wended its way through the state legislature.

Last week, however, the New York Senate passed a divorce reform bill, by a vote of 32-27, which would dramatically reform the law. Senate Bill 3890 would allow divorce based on the irretrievable breakdown of the marriage, regardless of whether either party had committed a particular kind of marital fault. And, importantly, a sworn statement by either spouse about the state of the marriage would be sufficient proof of the marriage's breakdown. (The Senate also passed companion bills that would set post-marital income guidelines for maintenance awards and require one spouse to pay the other's legal fees in the case of "greatly unequal financial resources.")

Although the State Assembly still needs to pass the no-fault bill (and it appears to be considering several alternative versions), and Governor David Paterson needs to sign it, the real battle was getting any divorce reform bill at all through the New York Senate.

In this column, I'll explain what changes the bill would bring about, what problems it will hopefully remedy, and whether there are likely to be any adverse consequences of the new law.

New York's Current Rules: The Grounds for Divorce Must Be "Fault" Or "Separation"

Under current New York law, courts can grant a divorce if one party has proven "fault" or "separation". The four fault grounds for divorce are relatively simple: The spouse seeking divorce must prove cruel and inhuman treatment, abandonment for at least a year, adultery, or imprisonment for at least three years. (One spouse need not sit idly by while the other is serving a lengthy prison sentence.)

In addition to the fault grounds for divorce, New York law provides two "separation" grounds. One of these requires that a couple must live for one year pursuant to a decree of separation granted by a court. But fault creeps in here, too, since a decree of separation can only be granted upon a showing of one of the "fault" grounds for divorce -- or upon a showing of "non-support," meaning that the breadwinner spouse has failed to financially support the other spouse.

The alternative "separation" ground requires that a couple must live for one year pursuant to a separation agreement. But, for this ground to work, the parties cannot simply "agree" that they will separate or even divorce. Instead, they must enter into a written agreement that reflects the settlement of all the consequences of divorce -- custody, spousal maintenance (alimony), property distribution, and, in some cases, more. The agreement must be signed, notarized, and filed with the county clerk's office, and one year must follow execution of the agreement. At the end of the year, if the terms of the agreement have been followed, either party can petition for a "conversion" divorce that will ripen the legal separation into a permanent dissolution of the marriage.

The proposed New York law would retain the current six grounds for divorce, and would simply add a seventh ground, which would allow divorce if:

"The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce."

Divorce Reform in the 1970s: A Wave of Legal Change that New York Largely Resisted

In many states, one party can seek a divorce on the grounds of "incompatibility," "irreconcilable differences," or "irretrievable breakdown" of the marriage. These terms are all shorthand for the same explanation: The marriage failed. None of these grounds requires that blame be placed on one spouse -- or that wrongdoing, such as adultery, be shown. The point is simply that the marriage didn't work -- not that a particular spouse ruined it somehow.

Grounds like these began to make their way into American law in earnest in the 1970s, after California adopted the first so-called "no-fault" divorce law in 1969. (In the Nineteenth Century, a few states had actually permitted divorce based on marital discord or unhappiness. But those provisions were all repealed when a conservative political tide swept in toward the end of that century. So the no-fault divorce provisions we see today typically were enacted much later.)

These 1970s laws swept away the traditional fault-based system in which -- at least, theoretically speaking -- there was no divorce by agreement, or divorce on demand. Instead, an innocent plaintiff had to prove, with corroborating evidence, that his or her spouse had committed "fault" such as adultery, cruelty, or neglect. But New York more or less let the no-fault revolution pass it by. The state legislature did expand the list of fault-based grounds as of 1967 from just adultery to the current list, but it still retained the basic fault structure.

Although the divorce reformers of the 1970s did not intend this result, no-fault divorce in most states has degenerated into unilateral divorce-on-demand. Courts initially tried to make judgments as to whether marriages were really "irretrievably broken," and sometimes denied a divorce if one party insisted the marriage could be saved. But eventually, courts conceded that marriages could not be saved unless both parties were willing to make the effort. Thus, the supposedly substantive standards became pro forma: Most states allow a divorce to be granted as long as one party swears either that the members of the couple have been living apart for a short period of time, or that the marriage has failed.

And in states other than New York, when divorce is by mutual consent, the parties need only agree to get divorced: They can leave other difficult issues like custody and the division of property for the court to decide.

How New York's Current Divorce Law Compares to That of Other States

A popular refrain about New York is that it is the only state in the union without no-fault divorce. Technically, that isn't true. The term "no-fault" refers to any ground of divorce that does not require one party to prove that the other committed marital fault. A "no-fault" ground can be predicated on a substantive assessment of the marriage such as "irretrievable breakdown"; but it can also be predicated on a period of separation, which is used, in effect, as a proxy for determining that the marriage cannot be saved.

And, as explained above, New York does permit divorce based on a one-year separation, as long as it follows the filing of a formal separation agreement. A couple that obtains a divorce through this process does get a "no-fault" divorce; a divorce will be granted without either party ever having to prove that the other committed marital fault. However, New York's requirements for establishing even this ground are stricter than the comparable requirements in most states, because of rules regarding procedure and substance of the written agreement, and the length of the separation that must follow.

However, when people talk about "no-fault divorce," they generally mean something less legalistic, and more akin to unilateral divorce -- the right of either party to seek dissolution of a failed marriage whether or not the other spouse agrees to it, and whether or not the other spouse has done something specific to make the marriage fail.

New York thus gets tagged as a state without no-fault divorce because New York's only no-fault ground for divorce requires mutual consent, as well as amicable resolution of divorce's many messy consequences. What New York really lacks is not no-fault divorce, but unilateral no-fault divorce.

New York's system is undesirable for many reasons. First, even in cases where the parties agree the marriage should be dissolved, they often cannot agree about the other issues that must be part of the separation agreement under New York law. The process of coming to agreement is, for this reason, time-consuming (often, both parties have lawyers), expensive, and often, simply not possible.

Second, and perhaps most oppressively, New York law rules out the possibility that a couple can end up with a "no-fault" divorce over the objection of one party. A party who does not want a divorce can simply refuse to sign the requisite separation agreement. A refusal may be in good faith -- by a party who truly believes the marriage will be saved -- or it may arise out of spite. Either way, the law provides no forum or mechanism that would allow the dissenting spouse's veto to be overridden.

Some Egregious New York Examples Where Courts Wrongly Denied Divorces

A third serious problem with New York's divorce system is that courts in New York sometimes deny petitions for fault-based divorce. As I have discussed in previous columns for this site, such as this one, the state's appellate courts have sometimes taken harsh positions on the definition of fault and thus have denied divorces to plaintiffs who have suffered in their marriages, but have not, in the court's eyes, suffered quite enough to satisfy the relevant legal standards.

The following cases offer just a few egregious examples:

(1) In 2004, in Ozkan v. Ozkan, a trial court judge denied a woman's petition for a divorce on grounds of adultery. Her husband admitted that he had traveled abroad with another woman and confessed to at least one affair. The wife testified that she had spoken to her husband's lover over the phone. Nonetheless, the judge denied the divorce because the evidentiary burden for proving adultery required more and, in any event, the wife had effectively excused his conduct by still having sex with him after learning of his infidelity.

(2) In Davis v. Davis, an appellate court denied a wife's plea for divorce on grounds of "social abandonment." According to the court, the mere fact that her husband of forty-one years refused to eat meals with her, attend family gatherings, or otherwise interact with her in a social manner might well prove that they had "irreconcilable differences," or that they were suffering in a "dead marriage," but it did not prove that he has "abandoned" her within the meaning of New York law.

(3) In Omahen v. Omahen, the wife proved that her husband frequently ridiculed her lack of understanding about American culture, referred to her by using derogatory epithets, and spent most of his free time ignoring her. However, she had no physical injury to point to, other than a slow gain of 14 pounds over five years, most of which she ultimately lost. The appellate court thus reversed the trial court's order granting her a divorce on grounds of cruelty, ruling that she was not entitled to a divorce.

A fourth problem with New York's system arises from the following reality: Because fault-based divorces are quicker (no one-year waiting period) and do not require a written agreement resolving issues of children and property, many couples opt for a fault-based divorce whether or not the fault actually occurred, and that usually requires perjury. Indeed, a major inducement for America's first no-fault laws was the desire to rid the system of collusive divorce -- a couple's manipulation of the system to obtain a divorce to which they were not entitled -- and the perjury, fraud, and other forms of dishonesty that went with it.

Because New York has always had the strictest divorce laws in the country-- it permitted divorce only on grounds of adultery until 1967, whereas most other states had a much more expansive list of grounds including abandonment, cruelty, drunkenness, and the like -- it was renowned earlier in the century for having the most corrupt divorce-law system. (New York was also known for fueling so-called "migratory divorce," where couples flee their home state's strict divorce laws and obtain one in a laxer jurisdiction like Nevada or the Dominican Republic.)

Literally hundreds of collusive divorces in New York involved fake evidence of adultery, often, according to historian Nelson Blake, with the same blonde actress portraying the husband's supposed mistress in numerous different cases. At a minimum, requiring proof of fault encourages parties to overstate the misconduct of the other; at worst, it invites outright fabrication.

There is no reason to think that the system today is any different. Anecdotal evidence today suggests that couples still play fast and loose with the fault grounds. Couples who agree to divorce might also agree that one of them will plead "constructive abandonment"--that is, falsely claim that the other refuses to have sexual relations--so that they can get a divorce without having to write and file a separation agreement.

Moreover, even when parties bring forth only honest allegations, fault is not a particularly good way of articulating the causes for marital breakdown. Marriages fail for a variety of reasons -- and seldom simply because one innocent party was wronged in one of four legally recognized ways by the other. And forcing parties to present evidence that fits these contrived categories does not give anyone, least of all the court, a very realistic picture of the true situation.

The Benefits of the Recently-Proposed New York Law

An important point to keep in mind, when evaluating divorce reform proposals, is that strict divorce laws have never been shown to correlate with lower divorce rates, and certainly not with greater marital satisfaction. Aside from a short-term increase in divorces when a strict law is relaxed -- the product of some pent-up demand -- the law is not what keeps people together or drives them apart. Married couples do not become happy merely because divorce is too difficult or too expensive to obtain.

The law does, however, dictate whether couples will flee the state to divorce in another jurisdiction, whether they will perjure themselves to defy the law, and whether they will waste countless time and resources on litigation -- and, in a worst-case scenario, whether they will be forced to stay in a destructive, broken marriage and be deprived of the chance of a good (re)marriage, or of simply enjoying single life.


Joanna Grossman, a FindLaw columnist, is a professor of law and John DeWitt Gregory Research Scholar at Hofstra University. She is the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009), an interdisciplinary collection that explores the gaps between formal commitments to gender equality and the reality of women's lives. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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