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Divorce New York Style

New York remains only state in nation without no-fault option.


New York divorce lawyers may not agree on much. But the fact that there’s no “no-fault” divorce in the state is a travesty that harms families, taxpayers, and the court system, they say.

“I think it’s unconscionable that in 2007, the state of New York is the only state in the country without no-fault,” says Peter Bodnar, a divorce lawyer at Bodnar & Milone in White Plains, NY.

“I don’t understand why 49 other states—and some other countries you wouldn’t necessarily expect, including Chile—all have no-fault,” adds Eleanor B. Alter, one of New York’s top divorce lawyers. “So we really are way out there.”

Under New York law, a couple cannot get divorced unless one spouse can prove in a court of law that the other is at fault in certain specific ways, such as having committed adultery or refusing to have sex for at least a year, which is costly and difficult to litigate. Couples who both want to divorce can take another tack, by agreeing to the terms of separation—including child custody and financial terms—but then must wait a year before a divorce. For those situations where one person wants a divorce and the other doesn’t, getting out of a marriage is difficult and expensive, both financially and emotionally—and sometimes close to impossible.

Every other state in the union has adopted no-fault divorce, in which one or the other party can simply cite irreconcilable differences as the reason for the marriage to end. The couple may still have to litigate over terms of the divorce, but one spouse can’t unilaterally prevent the other from getting a divorce, as they can in New York unless fault can be proved.

“I think it’s a horrible problem because it creates a charade and makes a mockery of the law by everyone involved.” – Peter O. Bodnar

There have been many unsuccessful efforts to reform New York law to add no-fault divorce. In the past few years, there was a very strong movement in that direction. Last year, a matrimonial commission formed by New York’s chief judge, Judith Kaye, recommended the adoption of no-fault divorce, and various state bar groups and other organizations, including the New York Bar Association and the Women’s Bar Association, strongly supported the change. While a bill was introduced into the legislature to adopt no-fault, it quickly stalled. Powerful groups continue to oppose no-fault divorce in the state, including the Catholic Church and some women’s groups, lawyers note. Some women’s organizations believe that refusing to allow husbands to get divorces more easily gives wives leverage for more financial and other support. But other women’s advocates believe no-fault keeps women in bad marriages.

In the meantime, divorce lawyers and their clients are very frustrated. “Now it’s run aground again,” says Sheila Riesel, a New York divorce attorneys whose high-end clients include Woody Allen. “So far it just doesn’t seem to get by legislature.” Riesel continues to have hope. But other lawyers are more pessimistic.

“A lot of people including myself are very active in trying to accomplish [change] but frankly I don’t have any hope for the near future,” says Alter. “People say there’s movement on this, but I don’t see it. I’d be shocked if we go no-fault in my lifetime, that’s how discouraged I am—and I don’t tend to keel over tomorrow, either.”

Why are bar associations, divorce lawyers, and many others so opposed to the lack of no-fault? For one thing, making it so difficult to divorce encourages a warping of the system by people eager to get around the narrow parameters of the law.

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