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Posted by Administrator WBASNY on 07/13/2006


July 13, 2006


Dear Editor:


The 3,500 members of the Women’s Bar Association believe the time has come for no-fault divorce in this state.  Recent news coverage has unfortunately included much mistaken or just plain wrong information about this issue. We write to set the record straight.


Right now, unless you and your spouse have signed a Separation Agreement, the only way to get a divorce in New York is to allege that he/she committed one of basically four acts: abandonment (two different kinds), adultery, or “cruel and inhuman treatment”. If you cannot say, and, if necessary, prove this, you cannot get a divorce.


No-fault divorce would eliminate this requirement. It would allow people to seek a divorce based solely on “irreconcilable differences”, or some other wording that means you and your spouse cannot get along but without having to explain why.


To understand the serious flaws in our current system, consider the plight of a victim of domestic violence. She must, for her own and/or her children’s safety, get away from her batterer. To get a divorce under current law, she must first file and have personally served on the batterer court papers that explain in detail exactly how she was abused. She then has two choices. She can try to get him to voluntarily admit he did these things. Or, if he will not, she can subject herself and her children to the lengthy, traumatic, expensive, and all too often dangerous process of convincing a judge that he did. Otherwise, she cannot get a divorce in New York State. Period.


With no-fault divorce, our hypothetical woman, and the many like her, would no longer be forced to waste time, money and emotional energy on proving who did what in the breakup of the marriage. Instead, they would be free to focus on what really matters - the custody of their children, child support, and the fair and equitable division of the parties’ financial affairs.


Opponents of no-fault divorce often argue that change in New York’s divorce law is unnecessary, and even undesirable, because it already allows couples to reach consent agreements after a “cooling off”  period of living apart for a year. For the victim of domestic violence whose abusive spouse refuses to agree, however, this provision is useless. For this woman, forcing her to endure a “cooling-off period” is not only inappropriate, it may well be an insurmountable obstacle to her safety.


Some opponents to no-fault divorce claim that it would hurt women in abusive marriages because it would not allow them to present necessary evidence of domestic violence in deciding the custody of their children or the amount of child support they may get. This is simply not true. The fact is,  the statute that forces people to prove who was at fault for the break up of the marriage, and why, is an entirely separate statute from those dealing with child/spousal support, child custody and equitable distribution. Changing one will have no effect on the others. Those who insist that they are connected either do not understand or are just plain wrong.


Child support is decided according to a strict statutory formula that applies whether or not there was domestic violence. Financial and property issues are dealt with under the law of equitable distribution. This law allows the court to consider any and all relevant factors, including domestic violence. Finally, custody is determined by the best interests of the children. The statute specifically requires courts to consider proof of domestic violence when determining this issue. 


None of these statutes has anything to do with proving a fault ground for the divorce. More importantly, not one of them would be changed or affected in any way by the enactment of no-fault divorce in this state. Contrary to the false claims of no-fault opponents, evidence of domestic violence would still be considered when necessary. The only thing that would be eliminated is the ability of batterers and others who enjoy financial or other advantages over their estranged spouses to force their victims to waste scarce time, money and emotional resources trying to prove grounds.


Some have been heard to argue that the only reason lawyers support no-fault divorce is because it will earn them more money. Nothing could be further from the truth. Most divorce lawyers charge by the hour. Therefore, eliminating an entire issue means, in most cases, eliminating hours and hours of work - and thus of pay. We do not support no-fault divorce to line our pockets. We support it because we have seen first-hand the terrible damage not having it has done to the citizens of this state.


It is for this reason that there is wide-spread support for no-fault divorce among many judges, divorce lawyers, advocates from the domestic violence community and, most importantly, matrimonial litigants themselves. Parties who have endured costly and lengthy court battles, depleting their monetary and emotional resources, have long cried out for reform of our archaic system. Enacting no-fault divorce is that reform.


Elaine N. Avery

President, WBASNY

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