Will New York Finally Adopt True No-Fault Divorce?
Recent Proposals to Amend the State's Archaic Divorce Law

In her State of the Judiciary 2004 report last February, Chief Judge of the New York Court of Appeals (the state's highest court) Judith S. Kaye called for a comprehensive review "to examine every aspect of divorce litigation with an eye to continuing improvement." Four months later, Chief Judge Kaye announced the establishment of the Matrimonial Commission, charged with carrying out this review.

Last week, the Commission held the first of four hearings that will occur around the state; each will consider testimony on several issues relating to the divorce process. One of the express subjects of these hearings is "collaborative divorce"--in other words, the hearing will consider whether New York should adopt a true no-fault ground for divorce, allowing divorce to occur simply because one party wants it.

To date, New York has been alone among the states in refusing to adopt a ground for divorce that would permit a marriage to be dissolved without proof of fault when only one party wanted out. Without such a provision, New York's current divorce law is arguably the strictest in the nation--as it has been throughout history. It is perhaps time for New York to join its sister states in permitting more accessible divorce.

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

Currently, to obtain a divorce in New York, a party must either prove that she has a "fault" ground for divorce, or a "separation" ground.

The four fault grounds for divorce are simple. The spouse seeking divorce must prove either cruel and inhuman treatment; abandonment for at least a year; adultery; or imprisonment for at least three years.

There are two "separation" grounds for divorce under New York law. One requires that a couple live for one year pursuant to a decree of separation. 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 second, alternative "separation" ground requires that a couple live for one year pursuant to a separation agreement. But, importantly, the parties cannot simply "agree" that they will separate or even divorce. To the contrary, the agreement must be a detailed written contract that sets forth and resolves all the issues between the parties: custody, support payments, property distribution, and, in some cases, more.

Even where parties agree the marriage should be dissolved, they often cannot agree about the other issues that must be part of the separation agreement. The process of coming to agreement is, for this reason, time-consuming (often, both parties have lawyers), expensive, and often, simply not possible. An ethical rule prohibiting a single lawyer from representing both sides makes this process even more expensive.

If agreement can be reached, the contract must be filed with a county court where either of the parties lives. Then, and only then, does the one-year clock begin to tick.

Even when a "separation" ground is established, a divorce is not automatically decreed at the end of the one-year period. Rather, one party must then sue for no-fault divorce, based on a showing that the terms of the decree or agreement were, indeed, carried out for the full period.

In the end, the couple that separates due to a separation agreement, and then sues for a no-fault divorce based on their compliance with the agreement, does get a "no-fault" divorce. That is, they can get a divorce without either having to prove that the other caused the marriage to fail in a specifically recognized way. But they still have to wait for a year, and be able to reach agreement on all rights and responsibilities flowing from the divorce. And that means New York no-fault divorce, while it technically exists, is nonetheless stricter than in most other states.

Perhaps the most oppressive aspect of New York law is that it 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.

The result is that the other spouse will have to claim fault (or, at least, non-support), either in seeking a separation decree, or in seeking a "fault" divorce. That can be very frustrating for a spouse - particularly one who does not want to expose children to the mudslinging of a "fault" battle.

How New York's "No-Fault" Compares to Similar Grounds in Other States

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 that the marriage didn't work - not that a particular spouse ruined it somehow.

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

In states other than New York, an individual spouse can conceivably obtain a decree of divorce against the will of the other spouse, and without proof of fault. Such divorces are often subject to at least a short waiting period, but it is often six months or less.

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.

Hidden Strictness in New York's Divorce Law

New York's divorce law has other teeth that you do not often see in modern day. There are very recent cases, some of which I have discussed in a previous column, in which courts have denied petitions for fault divorce.

For example, in a case decided just this summer, Ozkan v. Ozkan, a judge denied a woman's petition for a divorce on grounds of adultery. Her husband admitted that he 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.

But, the judge wrote in his post-trial ruling, "It is not easy to establish a ground of adultery due to the rigid evidentiary principles required to prove same." He concluded that she had not met that burden and that, even if she had, she had condoned her husband's conduct by having sex with him after learning of his infidelity.

The Proposal by the New York State Bar Association: True No-Fault Divorce

Spurred in part by cases like Ozkan and in part by longstanding complaints of parties about the time and expense incident to divorce, the New York State Bar Association (NYSBA) issued a proposal this summer to amend the basic law spelling out grounds for a New York divorce.

In NYSBA's proposal, >Domestic Relations Law § 170 would be amended to permit divorce based on "irretrievable breakdown." The proposal is calculated to bring New York in line with other states, which permit unilateral no-fault divorce. The proposal would also permit divorce based on a couple's living apart for one year--whether or not they filed a written agreement or resolved all their marital issues before separating.

NYSBA plans to introduce a bill to the New York legislature by early 2005. The legislature might again resist the pressure to change, but that would be a mistake.

New York Won't Prevent Divorces Merely By Making Them More Difficult

New York has long maintained a more restrictive divorce law than her sister states. Until 1966, divorce was available in New York only on grounds of adultery. This was true despite the fact that four-fifths of the states permitted divorce on grounds of "cruelty"--a much broader and easily provable ground than adultery--by 1886! New York stood firm, though, and made no meaningful changes to its grounds for divorce for another eighty years.

But the lesson from this history--and from that of other states that maintained relatively stricter divorce laws--is that divorce law bears almost no relation to the divorce rate. In practice, couples simply do not stay married merely because their home state makes it hard for them to part ways. And they certainly do not become happy together merely because divorce is too difficult or too expensive to obtain.

Thus, when the demand for divorce is powerful--which it is now, and has been for more than a century--the effect of strict laws is to cause a variety of unintended effects. While the intent may be to keep couples united, the actual effects are very different.

The Practical Effects of Making Divorce Hard to Get: Flight and Fraud

One of the effects is migratory divorce--the term used to describe travel out of one's home state to obtain a divorce elsewhere. Before the expansion of grounds in New York in the 1960s, New Yorkers flocked to Nevada to take advantage of that state's laxer divorce laws. Since then, many have still availed themselves of divorces from the Dominican Republic, or other places with fewer restrictions.

Among the other unintended effects of strict divorce laws are dishonesty, perjury, and even fraud in legal proceedings. During the first half of the twentieth century, New York was renowned for its secretly collusive divorces in which the parties together faked evidence of adultery--often, according to historian Nelson Blake, with the same blonde actress portraying the mistress in numerous different cases--in order to obtain a divorce the law said a couple could not have.

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"--the other's refusal to have sexual relations with a spouse -so that they can get a divorce without having to write and file a separation agreement.

Fault has never been a very good way of conceptualizing marital breakdown, since most marriages fail because of a complex confluence of factors. Requiring proof of fault simply encourages parties to overstate the misconduct of the other--or to outright fabricate it.

Finally, there is the simple effect that divorce in a state like New York becomes time-consuming and expensive. Lawyers benefit from this, but unhappily married couples do not. Divorce would undoubtedly be cheaper under the NYSBA's proposed revisions than under current law.

As It Stands, Only Lawyers Clearly Benefit from New York's Harsh Divorce Laws

The New York no-fault divorce bill, when proposed, will doubtless have opponents. For instance, some women's groups believe that the right to withhold consent to divorce gives wives valuable leverage in resolving issues like custody and property division. But if the current property and custody laws are indeed unfair to women - and they may indeed be - the best option is to directly reform them, rather than simply giving women the opportunity to overcome them by withholding divorce.

Other dissenters will object because their moralistic or religious vision of marriage is as a permanent relationship--to be dissolved only after it has suffered a significant injury like an adulterous affair. But again, it's worth noting that the current divorce law, far from guaranteeing permanence, has only invited duplicity and trips out of state.

Whatever the objections, the Legislature would be wise to take the NYSBA proposal seriously. It's not clear that New York's clinging to the past serves anyone's interests other than lawyers'.