Divorce 101

Heart Breaks, Head Aches and the Art of Equitable Distribution

Posts Tagged no fault divorce

New York’s “No Fault” Divorce Bill

Jul 26

Posted by Charles Messina in Grounds, Maintenance, Uncategorized, equitable distribution | No Comments

It seems that every year, the New York Legislature tries, and fails, to pass a “No-Fault” divorce bill.

This year is no different.  There have been different versions running around the Assembly and the Senate, both known as the Divorce Reform Act of 2010 (Assembly Version versus Senate Version).

The long and short of it is this:

  1. There will be a new ground for divorce in New York (to be set forth in Domestic Relations Law (DRL) § 170 (7)) as being :”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.”  This amounts to “no-fault” inasmuch as it does not require one party to prove fault on the part of the other, as has traditionally been required in New York.
  2. There is a new provision providing for the formulaic calculation of Temporary Maintenance awards amending DRL § 236-B.
  3. In order to opt-out of the statutory formula, a specific statutory waiver must be included in the order or agreement similar to that used to opt-out of the Child Support Standards Act (CSSA).
  4. There are additional considerations enumerated for the Court to look at, including one that may bring enhanced earnings claims (O’Brien claims) within the terms of the statute.
  5. There would be a rebuttable presumption that counsel fees are to be awarded to the less-monied spouse, on a timely basis, pendente lite.

So what does all that mean in English?  It means that New York State is trying to move into the 20th Century (NOTE:  the rest of the world currently lives in the 21st Century) in terms of divorce law.

The most interesting part of the proposed legislation is perhaps the formula propounded by the legislature to determine temporary maintenance (that’s alimony to the rest of the world).  The calculation goes something like this:

  1. Take 30% of the monied spouse’s adjusted gross income and subtract from it 20% of the non-monied spouse’s adjusted gross income (adjusted gross income is defined in the bill similar to the definition set forth in the CSSA).
  2. Multiply the adjusted gross income of the monied spouse by 40% and subtract from this sum the non-monied spouse’s adjusted gross income.
  3. Choose the lesser of the two sums from numbers 1&2 and that is your presumptively correct amount of temporary maintenance.
  4. The above applies up to an income cap of $500,000 (as if anyone in Western new York will need to worry about that).
  5. The duration of the temporary maintenance is to be determined by the Court “…by consideration of the length of the marriage.”  (please don’t ask, because I don’t know what that means).
  6. If the Court finds the presumptively correct amount of maintenance to be unjust or inappropriate, the Court can deviate from the presumptively correct amount by considering any or all of 17 enumerated factors and setting forth in a written Order the presumptively correct amount, the factors it considered in adjusting that amount, and the reasons why it adjusted that amount.  (The written findings cannot be waived by the Court, the parties, or the attorneys).
  7. The parties can opt-out of the presumptively correct amount in a written agreement or oral stipulation so long as it includes certain waiver language set forth in the statute.

And the question everyone is going to want the answer to:  Will this new legislation give me a change in circumstances sufficient to go back and get my maintenance changed?  NO!  The text of the bill specifically states that it will not.

One of the more interesting provisions of the bill, (in my humble opinion) is the fact that it directs the Court to consider “The contributions and services or the party seeking temporary maintenance as a spouse, parent, wage earner, and homemaker and to the career or career potential of the other party.”

This seemingly brings the enhanced earnings claims (which have been a creature of case-law under O’Brien and its progeny) into the realm of statute and with one stroke of the pen changes the nature of an enhanced earnings claim from equitable distribution to maintenance.  The biog deal here is that distributive awards are not taxable, but maintenance is includable as income to the person receiving it and deductable to the person paying it.  I’m interested to see what will become of this if the bill is ever signed into law; which brings us back to my original comments…

The State of New York still has no “No-Fault” divorce law and the Governor has not, as of this date, signed the Divorce Reform Act of 2010 into law.

Knock Knock… Whose there?

No-fault divorce… No-fault divorce who?

No-No-fault divorce in New York, that’s who!

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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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