Divorce 101

Heart Breaks, Head Aches and the Art of Equitable Distribution

Posts Tagged irreconcilable differences

No-Fault Divorce… what is it?

Oct 5

Posted by Charles Messina in Grounds | 14 Comments

There has been a lot of hype around the recently passed “No-Fault” divorce law which amended § 170 of New York’s Domestic Relations Law (DRL).  But what does this mean to the average Joe (or Josette) who just wants to get divorced?

The change added a new ground for divorce as DRL §170(7) which provides as follows:

§ 170. Action for divorce. An action for divorce may be maintained by
a husband or wife to procure a judgment divorcing the parties and
dissolving the marriage on any of the following grounds:
[...]
* (7) The relationship between husband and wife has broken down
irretrievably for a period of at least six months, provided that one
party has so stated under oath. No judgment of divorce shall be granted
under this subdivision unless and until the economic issues of equitable
distribution of marital property, the payment or waiver of spousal
support, the payment of child support, the payment of counsel and
experts’ fees and expenses as well as the custody and visitation with
the infant children of the marriage have been resolved by the parties,
or determined by the court and incorporated into the judgment of
divorce.
* NB Effective October 12, 2010

This effectively means that if one of the spouses makes an affidavit that states the marriage has been irretrievable broken for a period of at least six months, that can serve as grounds for divorce.  No more people lying on the stand about how horrible his or her spouse was, and thus, no more need to prove that the death of the marriage was the FAULT of one party or the other.  Oh happy day!

So what are the potential issues with this?  As of today, nobody really knows how this is going to work!  Because this is listed as another of the potential grounds for divorce, and the statute does not explicitly state that a party making this allegation is automatically entitled to a judgment of divorce, there are some attorneys and judges who believe that an action based on the new ground can be defended, and possibly defeated in a grounds trial, just like any other alleged ground for divorce.  I foresee someone challenging this and appeals to be had in all four Departments of the State, likely going right up to the Court of Appeals (our highest court in New York).  How exactly does one prove that a marriage is irretrievable broken?  How about a judge requiring the parties to go through a Conciliation Proceeding to certify the marriage is irretrievably broken before granting a judgment of divorce?  Or perhaps marriage counseling would be required.  Would expert testimony be necessary to determine if there is any chance to salvage the marriage?   Maybe the simple affidavit attesting to the breakdown will be deemed irrefutable evidence of the breakdown.  We simply don’t know the answers to these questions yet.

Here’s an interesting observation… the statute set forth above does NOT state that the breakdown had to be in the six months immediately prior to a party filing for divorce.  The general statute of limitations on grounds for divorce (under most circumstances, but not all) is five years.  Conceivably, one could say that four years ago, the marriage had irretrievably broken down for a six month period and now I’d like my divorce please.  Ha!  That’s a fun thought!

So what about all the other mumbo-jumbo in the statute about “…shall not be granted unless…” and all the other things that have to happen before a judgment of divorce can be granted?  Well, I think it is basically superfluous nonsense, truth be told.  People will either have a settlement agreement and get the divorce, or the litigation will go something like this:

  1. Plaintiff files under DRL § 170(7) and attaches an Affidavit to his or her Summons with Notice.
  2. The Court can make Findings of Fact and Conclusions of Law that the Plaintiff is entitled to a judgment of Divorce…. BUT NOT GRANT the divorce yet.
  3. The custody, visitation, support, maintenance and equitable distribution aspects of the case can be settled or tried if necessary.
  4. Once the ancillary issues are tried or settled and a decision is rendered, they can be incorporated into a Judgment which would THEN be granted, and the statute is therefore complied with, no sweat off anybody’s back.

So,where does that get us?  I think the Legislature has marched us into the 21st century and brought the last State in the Union inline with the other 49 by removing the necessity of lying under oath (not that anyone would ever do such a thing…) to get free of his or her annoying/abusive/aggravating/[insert adjective of your choice here] spouse.

In terms of real impact on the average divorce proceeding, I’m not sure it will have much of any.  The people who previously used the fault requirement to hold a spouse over the barrel in a little situation I like to think of as legalized blackmail (mean spouse would challenge grounds and push for a grounds trial unless the other spouse agreed to take less of the marital assets, in which case mean spouse would agree not to challenge grounds and divorce would sail through) will probably do the exact same thing under the new law.  The first few cases (I predict they will occur primarily in the New York City area) will likely be appealed and determine exactly how these things will work.  As of today, nobody can say for sure.  But in the other 90% of divorce proceedings, the new law will not be much more than words on a piece of paper.

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“No-Fault” Divorce: The Holy Grail

Oct 13

Posted by Charles Messina in Grounds | 5 Comments

In New York State, one must have “Grounds” to obtain a divorce.

Grounds for divorce are set forth in our Domestic Relations Law Section 170  and include only:

  1. Cruel and Inhuman Treatment -  A “catch all” that is often abused and sometimes misused;
  2. Abandonment – for more than one year…  may also encompass “constructive abandonment”  a/k/a refusal of sexual relations;
  3. Confinement of Defendant to prison – self explanatory;
  4. Adultery – which is surprisingly difficult to prove since spouses are incompetent to testify against each other concerning this; or
  5. Parties have lived apart pursuant to a judgment of separation or separation agreement for at least one year-  sometimes referred to as a “conversion” divorce.

In order to obtain a divorce in New York, only one of the above grounds will do the trick, nothing else.  The party seeking the divorce must prove, to a jury if necessary, that he or she has sufficient grounds for divorce.  And the longer parties are married, the greater the proof necessary to demonstrate sufficient grounds.  Simply saying “We don’t get along any more and we both want a divorce” is insufficient.

To complicate matters, if there are no grounds for divorce, there can be no equitable distribution of property.  What does that mean in English?  It means that if Wife Wanda files for divorce against Husband Bob, and Bob has a great job, lots of income, and all the assets are in his name, and Wanda has little more than her dislike of Bob’s bottle collection as her grounds, Bob gets to have a trial and challenge her to prove her grounds.  But why would Bob want to do that, you might say?  Because if Bob defeats Wanda in a grounds trial, he will not be forced to give her any of the money he has hidden away in a Swiss bank account, or to give her the house owned in his name, or to provide her with the Mustag GTO that he just bought while leaving her with the ’82 Camry.  Bob can effectively hold Wanda over the economic barrel.  When this happens, Wanda is usually willing to give up what would normally be her fair share of the assets in exchange for Bob not challenging her grounds for divorce.  I tend to think of this as legalized blackmail, but perhaps that is being too harsh…

You may have noticed there is no “irreconcilable differences” in that list of grounds.  New York is, I believe, the only state in the union that does not have a “no-fault” divorce provision, such as irreconcilable differences.  There is an outdated mode of thought in New York that the State has a vested interest in the marriage relationship.  Personally, I feel that vested interests in marriage are strictly the business of the people involved in that marriage and the State has no business forcing two people who can’t stand each other to remain together.  I leave it to religion to make moral determinations, those ar enot for me.

There has been a push in the past decade to bring New York in line with the rest of the country and provide a no-fault ground for divorce, but a law has yet to pass.  There is currently a bill in the New York State Assembly which would add “irreconcilable differences” to the list of grounds for divorce.  I am all for it!  The time has come for New York to get in line with the rest of the country and give people a way out when the love is gone and there is no going back.

A grounds trial is a horrific beast to watch.  I’ve seen them, and they are not pretty.  The plaintiff parades a line of witnesses across the stand to say what a horrible creature the defendant is.  The defendant parades a line of witnesses across the stand to say what a wonderful person he or she is and explain away the allegations of the plaintiff.  In the process, both people are irrevocably scarred, any chance of dealing civilly with the other is burnt to ash, and the State has thus preserved the “sanctity” of marriage.

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