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No Fault Divorce Coming To New York?

New York is currently the only state in the United States that does not have a true no fault divorce law. However this may soon change. On Tuesday June 15, 2010 the New York State Senate approved a statue that would permit couples to obtain a divorce by mutual consent.

For many decades, New York has had the most conservative divorce laws in the United States. This has caused the courts to be clogged with unnecessary litigation. Under the laws that exist in New York, today one spouse most prove either abandonment, cruel inhuman treatment, adultery, or that the parties have lived separate and apart pursuant to an written agreement of separation for a period of one year, to obtain a divorce.

It is now up to the New York Assembly, the lower house of the state legislature, to approve or reject the new no fault divorce law. There has been an indication that New York Governor, David A. Patterson, supports the no fault divorce law. Should the law be placed upon his desk he will sign it.

This is not the first attempt to liberalize divorce laws in the State of New York. Various forms of no fault divorce laws have been submitted to the State Legislature and rejected by them for many years.

The current opponents of the no fault divorce law are the Catholic Church and some women’s groups. The Catholic Church objects to making divorce easier. The women’s groups fear that no fault divorce will deprive women, especially poor women of leverage they need to obtain fair amount of spousal maintenance and child support from their husbands who seek to divorce them.

As the law stands today the party moving forward for the divorce often lies and claims that he or she was sexually abandoned by their spouse for a period of one year.

This creates an constructive abandonment which allows the parties to get divorced under the theory of abandonment. Query: How many men in New York would refuse to have sex with their wives for a period of one year?

In 2004 the Women’s Bar Association of the State of New York reversed its opposition to a no fault divorce law. They stated “we came to the realization that forcing one party to either admit or to be found at fault in the deterioration of a marriage provides no economic or other advantage to either party.” The Women’s Bar Association also found that the current divorce law requiring parties to testify against each other as to grounds for divorce harms children of the marriage.

Richard Barnes, the executive director of th New York State Catholic Conference has stated the Church’s position with regard to the New York divorce law. It feels that the existing law has sufficient protection for the parties to a marriage who are seeking a divorce. It feels that, due to spousal abuse or adultery, the state has legitimate interest in seeing that couples be legally separated for at least one year prior to filing for a divorce. The Catholic Church’s position is that New York State has one of the lowest divorce rates in the country due to the fact that we have a conservative divorce law. The New York State Catholic Conference has requested that the New York State Assembly and the Governor reject this new liberalized no fault divorce law.

To allay the fears of women’s groups the New York Stare Senate has passed two related bills to the no fault divorce laws. One of the bills seeks to have spouses on more equal financial footing when hiring lawyers. Although the law currently allows judges to require the wealthier spouse to pay for legal bills, the new law would require judges to make arrangements for the wealthier party to pay the other parties legal bills early in the divorce case.

There is a third bill pending in the state legislature that creates a standardized formula to determine spousal maintenance (alimony payments between spouses) Presently judges have the discretion to determine what spousal maintence (alimony payments) should be. Although under the new law judges will still have a level of discretion, the new statue would create a structure to make the spousal maintenance payments more consistent.

Elliot S. Schlissel, Esquire, has been handling divorce matters in the metropolitan New York area for more than 32 years. He has personally been involved in handling hundreds of divorce cases during this period of time. He is a member of the Nassau County, Queens County, and New York State matrimonial and family law committees.

If you are considering divorce or need other legal assistance in family law matters, email us or call us at 1-800-344-6431.

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