For example, take a couple that falls out of love and wants to divorce amicably. They have two choices: they can draft a separation agreement and file it with the court, and then wait a year. Or, if they want to divorce sooner, they may choose to place “fault” on one of them, say, by claiming there was adultery even if there was not. Or, they can claim “constructive abandonment,” another of the fault grounds, in which one spouse testifies that the other refused to have sex for at least a year.

“The failure to have a law that meets the needs of the population, which is what we have, creates problems within the judicial system for lawyers, judges, and clients, because they find ways to do things that are not quite within the statute,” says John F. Zulack, who handles high-end divorces for the New York firm Flemming Zulack Williamson Zauderer, LLP.

So that when a husband and wife go to see a lawyer and say they mutually want a divorce, they run into a problem: they must either wait a year or allege fault against one of them. But the fault reasons are quite severe: abuse of a serious level, adultery, imprisonment, say. No one wants these on their permanent record, so couples often choose to claim that they haven’t had sex in a year because one of them refused to. When they go into court and make this assertion, judges and others are quite certain it isn’t true—but everyone goes along with it.

“It’s absolutely an emperor’s clothes situation,” Zulack says. “It’s a fiction, it’s a fiction.”

That the system almost forces people to lie really disturbs many lawyers who support change.

“I think it’s a horrible problem because it creates a charade and makes a mockery of the law by everyone involved,” says Bodnar. “It creates utter disrespect by the litigants, by the lawyers, and by the judges who wink knowingly when people have to take a position in these cases to make an end-run around the absence of no-fault.”

Another option is for one spouse to move out of state and file for divorce there, which divorce lawyer Gary Cohen of Greenwich, CT, has witnessed numerous times. “A lot of people just jump over the border,” he says, noting that as long as they can establish that their move was in good faith, they can establish residency for the purposes of divorce.

Then there’s the cost to taxpayers and the court system of using judicial resources to litigate the basic issue of a marriage ending—not to mention the toll on children and the parties of painting one spouse in a bad light.

“The failure to have a law that meets the needs of the population, which is what we have, creates problems within the judicial system for lawyers, judges, and clients.” – John F. Zulack

“State has a lot to gain because we spend millions in state money trying these fault cases, through the time of the judges and court personnel and the use of court time, millions of dollars of taxpayer money litigating who did what to whom, and sometimes there are juries involved, too,” says Alter. “It’s really reprehensible, I believe, to be litigating those issues because in most cases, you never really know what’s happening. Also think that where there are children involved, the last thing that’s conducive to co-parenting after a divorce is to have one parent or both saying what a terrible person the other parent is.”

For now, lawyers agree, there’s little change in sight—and no-fault divorce remains an elusive option.