Recently in No-Fault Divorce Category
A Husband's claim that New York's "no-fault" divorce statute violates his constitutional rights has been rejected in the March 28, 2011 decision of A.C. v. D.R. The statute, DRL §170(7), permits a party to obtain a divorce by swearing under oath that the marital relationship has been irretrievably broken for a period of at least six months. There would seem to be no defenses to such allegations. Yet, the Husband in the Nassau County matter claimed that because he wanted to stay married, the statute violated his constitutional rights to due process.
Justice Anthony J. Falanga rejected this claim and held that "staying married, against the wishes of the other adult who states under oath that the marriage is irretrievably broken, is not a vested right." The Court further held that a party's "self-serving declaration about his or her state of mind is all that is required for the dissolution of a marriage on grounds that it is irretrievably broken."
This case will undoubtedly bring large sighs of relief to other parties facing challenges to their right to a no-fault divorce.
New York's new no fault divorce law - which allows a couple to divorce if one party claims there has been an irretrievable breakdown in the marriage - went into effect on October 12, 2010. Will this increase the number of people filing for divorce? Crains New York Business recently asked me that question, along with other divorce experts, and we all stated in one way or another that we expected that it will. Many unhappy spouses have been waiting for this law to become a reality and New York's divorce attorneys can expect an influx of new cases in their offices over the next 6 months to a year.
There are 2 types of clients that will be seeking a divorce. The first is the client who may have had grounds under the old law, but had no desire to recount every nasty thing that their spouse said or did to them over the past 5 years. As I stated in Crains, "This is definitely good news. Having a trial on grounds is one of the worst things anyone can do. Clients don't want it, lawyers don't want it. It will destroy the family, and it will destroy any goodwill there was."
The second type of client is the one who has tried couples therapy, who has tried "working on the marriage," and who has tried to make the best of a bad situation. But regardless of what they did, there was no denying the love was gone. Their home life was not dangerous to their physical wellbeing, but it was crushing them emotionally and spiritually. As attorneys, we are now able to help both of these types of clients to move forward with their lives at a significantly lower financial and emotional cost than it would have cost in the past. This is good news for everyone involved.
Governor David Patterson signed New York's no-fault divorce bill into law yesterday, bringing New York in line with the 49 other states that already have some version of the law. So what exactly does this bill do? It amends Section 170 of New York's Domestic Relations Law, which sets forth the grounds for divorce, and will now permit couples to divorce if one spouse swears under oath that the relationship between husband and wife has broken down irretrievably for a period of at least six months. Here's a link to the bill that was signed.
Claiming that there has been an irretrievable breakdown in the marriage will not automatically result in divorce. That won't happen until the couple has resolved the economic and child-related issues between them. But it will end one spouse's ability to prevent divorce by forcing the other to prove fault such as cruelty, abandonment or adultery, thereby trapping a spouse in the marriage until she or he gives into the economic or parenting demands of the other. And it will eliminate the need for couples who agree to divorce to allege that one of them was to blame.
Every divorce lawyer I know has been in favor of no-fault divorce. Not only because it will help their clients emotionally and financially, but also because it will eliminate the need for the attorneys to falsely certify their clients affidavits in which they "admit" such wrongdoing. Additionally, judges will no longer need to pretend they don't know that false evidence is being presented when two parties, who clearly agree that they want a divorce, come before them and present their divorce papers for signature. This sensible law was long overdue.