Is No-Fault Divorce Law Really Without Fault?

When the New York legislature enacted the 50th “no-fault divorce” law in the U.S. during 2010, it was heralded by the media as a long-overdue victory for residents of our state.  Couples who had endured the archaic fault-based system expressed both joy and relief in this new statutory provision that was designed to diminish court dockets and allow couples in “dead” marriages to move forward with their lives apart.  And had the elected officials in Albany designed a law that was truly no-fault–with no strings attached–then perhaps the publicity surrounding the statute would have been warranted.  But alas, laws are not always what they appear to be at first blush.not-fault

Pure no-fault divorce laws that exist in many other states allow marriage partners to dissolve their union by a simplified and expedited law suit that requires one spouse to allege “irreconcilable differences” in the relationship with no opposition by the other.  Had that occurred in New York, we would indeed be a classic no-fault divorce state.  Nevertheless, from Manhattan to Buffalo, an “irretrievable breakdown of the marriage for longer than six months” is the ground now in effect in our state.

Notably, as an absolute prerequisite to getting a New York no-fault divorce, parties must have resolved all issues pertaining to the division of assets and debts, spousal maintenance, counsel and expert fees, and custody and support of children.  Such resolution must be embodied in a legally enforceable, written, and properly signed and acknowledged Settlement Agreement; and if no such Agreement exists, then those issues must be determined by the Court.  How does a Court decide those topics (as opposed to the spouses doing so by a signed Agreement)?   Quite simply put, by the conduct of a trial where testimony of the parties and other witnesses will be heard and documentary evidence is adduced.  That includes at least four different appearances before the assigned judge, magistrate or referee–which will certainly not be the expedited, economical and non-adversarial process that might have been anticipated.  Without a doubt, no-fault divorce is a positive development for New Yorkers:  yet clients are warned to be cautious and have their eyes wide opened in understanding the new law.  If a divorce is commenced due to the “irretrievable breakdown” of the relationship and there is no comprehensive written, notarized mutual Agreement in effect, expect up to a year of litigation in the courts.

The moral here is simple:  before starting a seemingly uncontested divorce action in State Supreme Court,  husbands and wives should negotiate, collaborate or mediate a thorough settlement of all the matters in the marriage:  from who will keep the home, to how retirement assets are divided, to what parenting plan shall be in effect, to how much support needs to be paid and for how long.  Otherwise, faulty assumptions about the no-fault law will yield potentially disappointing experiences in a judicial system that must apply the law our legislature has created.

Domestic Relations Law 170(7)