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“Finally, New York has Brought its Divorce Laws into the 21st Century”

“Finally, New York has Brought its Divorce Laws into the 21st Century”

In the fall of 2010, former Governor Paterson exclaimed with relief that New York has finally joined the 21st century, following the rest of America, by adopting a No-Fault Divorce law. So why was the former Governor happy about New York’s No-Fault Law? A No-Fault Divorce enables a married couple to obtain a divorce without placing blame or fault on one of the spouses for the failure of the marriage. Moreover, some legal experts in the matrimonial field assert that the No-Fault Divorce law will make breaking up “easier” to do.

How can getting a divorce be easy? What does No-Fault Divorce mean to you from a practical standpoint? Until 2010, if you were seeking a divorce you had three options. Your first option was to establish fault against your spouse, which meant proving cruel and inhuman treatment, abandonment for a continuous period of one year or more, imprisonment for more than three years subsequent to the marriage, or adultery. Your second option was to get separated from your spouse via a court judgment or a separation agreement and use the separation to serve as the basis of your divorce. Note that if you secured a separation, you also had to live apart from your spouse for one year before the separation could serve as the basis of your divorce. Your last option was for you and your spouse to agree to an uncontested divorce in which one of you would be compelled to admit to one of the fault based grounds for divorce. These options are still available under New York law, but the legislature has added the No-Fault option.

No-Fault Divorce will allow you or your spouse an easier route to getting a divorce judgment because you won’t have to engage in finger pointing, admissions of fault, or a separation order to obtain a judgment of divorce. Instead, you can get a divorce by simply proving that the marriage has broken down irretrievably for a period of at least six months. An irretrievable breakdown of a marriage may be easily established if both spouses state that their marriage is irretrievably broken or one spouse states that the marriage is irretrievably broken and the other spouse doesn’t deny that it is broken. Factors a court may look at when considering whether the marriage is irretrievably broken are whether there is a conflict of personality, an unreciprocated concern for the emotional needs of the spouses, the marriage is characterized by financial difficulties, there has been a long physical separation, a difference of interests, resentment, distrust, constant arguing, or irreversible antagonistic feelings between the spouses. Nonetheless, because the applicable statute is recent, it is unclear what happens if one spouse challenges and denies that the marriage is irretrievably broken. One case, Strack v Strackruled that such case may be sent to trial for the fact finder (usually a judge) to decide whether or not such marriage is irretrievably broken. However, another case, A.C. v. D.R., ruled that there are no defenses to a No-Fault Divorce and that simply one spouse’s sworn affidavit stating that the marriage is irretrievably broken is enough to grant a divorce. Therefore, the law is still taking shape in New York and over time the appellate Courts will decide whether a party can challenge their spouse’s claim that the marriage is irretrievably broken in a Court of Law.

One should keep in mind, however, that in order to be granted a No-Fault divorce in New York, issues of the equitable distribution of marital property, spousal support, child support, the payment of counsel and experts’ fees, as well as custody and visitation must first be resolved by the parties or determined by the court. Therefore, while No-Fault divorces may make it easier and faster for you to prove that you should be granted a divorce, the issues of child custody, child support, equitable distribution of property, and attorney fees can sometimes be emotional, time-consuming, and expensive issues to resolve. It should be noted that the No-Fault Divorce law does not eliminate all finger-pointing and blame in the divorce process. Unless you and your spouse can resolve these issues amongst yourselves, don’t expect divorce proceedings to be easy, fast, or inexpensive. On the bright side, however, No-Fault Divorces will usually enable you to use more of your resources and energy on these important issues instead of on the issue of whether your marriage should end.

Elliot Danziger, Esq.

Elliot Danziger is the owner and founder of the law firm
of Danziger Legal PLLC. Elliot specializes in real estate
transactions and divorce and family law...Read More

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