Divorce New York Style

New York divorce lawyers may not agree on much. But the fact that there’s no “no-fault” divorce in the state is atravesty 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 isat 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 addno-fault divorce. In the past few years, there was a very strong movement in that direction. Last year, amatrimonial commission formed by New York’s chief judge, Judith Kaye, recommended the adoption of no-faultdivorce, 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 theCatholic 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.

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 onespouse 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 ZulackWilliamson 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 thefault reasons are quite severe: abuse of a serious level, adultery, imprisonment, say. No one wants these on theirpermanent record, so couples often choose to claim that they haven’t had sex in a year because one of themrefused 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 thepurposes 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 ofthe judges and court personnel and the use of court time, millions of dollars of taxpayer money litigating who didwhat to whom, and sometimes there are juries involved, too,” says Alter. “It’s really reprehensible, I believe, tobe litigating those issues because in most cases, you never really know what’s happening. Also think that wherethere are children involved, the last thing that’s conducive to co-parenting after a divorce is to have one parent orboth 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.

Breaking Up Is Not Easy To Do in NY
How can you get a divorce in New York? It’s not easy. If both spouses can agree not only to end the marriage but agree on financial and other terms, they can file a separation agreement with the court—and wait a year. But if they want to divorce sooner—or if one spouse refuses to divorce—then “fault” must be proven in court before a judge or jury, under a few specific grounds:
• Adultery
• Imprisonment for three years
• Abandonment for at least a year, or constructive abandonment (refusal to have sex for at least a year)
• Cruel and inhuman treatment, to the point where it’s unsafe for the victim spouse to remain in the marriage

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Divorce New York Style