New York: Making it Easier to Say "I Don't"?

New York: Making it Easier to Say "I Don't"?

by Alice Graves, December 2009

While New York may be in the vanguard when it comes to finance, culture and the arts, when it comes to divorce, citizens of the EmpireState are still stuck in the dark ages. New York's divorce laws are some of the strictest in the nation. In fact, New York is the only state in the union without a No-Fault Divorce option.

The big question that must be answered is whose at fault?

Up until 1966, adultery was the only recognized ground for divorce. Today, the options are slightly better but without a No-Fault divorce alternative, New Yorkers still have to petition for divorce using one of four draconian "fault" grounds. There's (1) cruel and inhuman treatment, (2) abandonment for at least a year, (3) adultery, or (4) imprisonment for at least three years.

There are also two "separation" grounds for divorce that require that spouses either (1) live apart under a separation agreement for a year or (2) prove that one spouse has refused to support the other. The only catch is, to even qualify as "separated," a spouse must prove one of the four faults or show a lack of monetary support. And don't even think about conjugal visits during this separation period. Any amorous contact during the year apart automatically sets the divorce clock back to zero.

Even in cases when fault is obvious and the proof is iron-clad, New York courts have been known to deny petitions for fault divorce. In one recent case, a woman petitioned for divorce on the grounds her husband committed adultery. The wife testified that she had spoken to her husband's lover on the phone. The husband himself admitted to traveling abroad with another woman and having at least one affair. Yet despite the overwhelming evidence, the judge concluded that the wife had not sufficiently proved her husband's marital misconduct. To add insult to injury, it was ruled that the wife had essentially condoned her husband's conduct by continuing marital relations after learning of her husband's affair.


Not surprisingly, one of the effects of New York's current law is an increase in "migratory divorce." Couples circumvent New York's laws by traveling to states like Nevada where divorce laws are more lenient and residency requirements are minimal. The Dominican Republic, which doesn't have a divorce residency requirement and offers "mutual consent" divorces in under an hour, has also become a divorce hotspot for couples looking to end things quickly and quietly.

When traveling out-of-state to end a marriage is impossible, New Yorkers are often forced to commit fraud in order to push through their divorce at home. Many couples have admitted to filing false claims of "constructive abandonment." Translation: One spouse refusing to have sex with the other.

Supporters of New York's stricter divorce laws argue that they encourage couples to remain married. But opponents claim that divorce law bears no actual relation to the divorce rate. Couples, they argue, don't stay married because the law makes calling it quits difficult. They are simply driven to greater and greater extremes like traveling cross-country or committing fraud to obtain a divorce.

Change is a coming.

Amidst growing criticism, New York has recently undertaken steps to change its current divorce laws, establishing a Matrimonial Commission to review New York's antiquated divorce laws and recommend new divorce legislation.

While the Matrimonial Commission has been holding hearings, the New York State Bar Association has also proposed a no-fault amendment to the divorce law. The amendment would permit divorce based on the "irretrievable breakdown" of the marriage. While this isn't exactly the liberal language of California's "irreconcilable differences," it is a step closer to a true No-Fault divorce.

Under this proposed change, divorce would become faster, cheaper, and more civil. It would recognize that marital breakdown is a result of complex reasons attributable to both spouses, and not the result of simple marital misconduct on the part of one or the other. Proof of fault would no longer be necessary. Thus, lawyers would be able to focus on issues like custody and finance, rather than on hiring private detectives to dig up as much dirt as possible on their clients' spouses.

The New York State Bar Association plans to present its proposal to the legislature in early 2005. If it passes, New York couples headed for splitsville can finally breathe a sigh of relief.