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Beverly Willett

Beverly Willett

Posted: March 16, 2011 02:46 AM

No-Fault Divorce? Maybe Yogi Was Right


Last summer, former Governor Paterson signed a bill making New York the 50th and final state to enact no-fault divorce. Sponsors said a complaint for no-fault divorce would be irrefutable and thus obviate the need for any trial whatsoever with respect to grounds. I was heartbroken when I heard about the bill; to me, standing up for marriage and family in America now was truly an impossible dream.

Under the new statute, parties no longer need prove fault or that they've lived apart under a separation agreement for one year in order to obtain a divorce. Now, they can opt for no-fault by alleging under oath that the marriage has "broken down irretrievably for a period of at least six months." According to Elliott Scheinberg, an appellate attorney whose practice is limited to matrimonial law, the statute allows for unilateral exit from marriage based solely on the subjective view of the party suing for divorce, no defense to no-fault permissible. In other words, presumably, merely swearing under oath makes it so. Pleading specifics, he says, can also open up a "can of worms."

Well, the can of worms has now been opened. On Friday, Veronica O'Dell, counsel for the defense in Strack v. Strack, received a copy of a notice of appeal to the New York Appellate Division, Third Department, challenging the decision of Justice Robert Muller of the Supreme Court in Essex County. The pending appeal indicates that the celebrants who pushed through New York's no-fault may have uncorked the champagne a bit too early. (This is despite rumors that judges in Manhattan are placing their stamp of approval on no-fault divorce purely on the basis of the moving party's sworn statement.)

In Strack, Justice Muller held that the defendant was entitled to a trial to determine if the parties' 47-year marriage had "broken down irretrievably." While the plaintiff did not technically assess blame, her complaint alleged that the parties had no emotion in their marriage, kept separate vacation and social schedules and lived separately during most of the winter. In ordering an immediate trial on the issue of whether the couple's relationship had in fact broken down irretrievably, Justice Muller wrote that the new statute "is not a panacea for those hoping to avoid a trial. Rather, it is simply a new cause of action subject to the same rules of practice governing the subdivisions which have preceded it." This is particularly true, he said, because the legislature failed to define irretrievably broken, thereby leaving determination to the finder of fact. In other words, Mr. Strack had the right to be heard and contest his wife's claim that the marriage was irretrievably broken, even though divorce might ultimately be granted over his objection.

Curiously, the defendant was sued by his wife twice before, in 1986 and 1990; each time, however, the couple, now in their 70s, reconciled.

Justice Muller also held that the defendant was entitled to trial by jury if he so elected since the legislature failed to exempt no-fault divorce from § 173 of the Domestic Relations Law which grants the right to trial by jury in divorce actions. O'Dell told me that trial is currently scheduled for June, that discovery is underway, and that her client intends on seeking a jury trial. To date, she has received no motion to stay the trial pending appeal.

Last month, another appeal had been pending before New York Appellate Division, Second Department, in the matter of Stroffolino v. Stroffolino, a matrimonial case in which Brooklyn Justice Eric Prus had similarly ordered the parties to proceed to trial on no-fault grounds. Attorney for the defendant, Lloyd Thompson, told me, however, that the matter of grounds has now been resolved, rendering the appeal moot.

It's unclear whether even more cases of discontent by spouses who have no say in the ending of their marriages are brewing in the New York courts. At a recent bar association presentation, I asked one of New York's matrimonial judges whether spouses were contesting lawsuits filed against them under New York's no-fault statute and, if so, how judges were responding. He declined to comment, stating that the judicial canon of ethics precluded him from doing so.

"He was just ducking the issue," one of New York's most high-powered matrimonial attorneys, who asked that his name not be mentioned, told me yesterday.

The upshot is anyone's guess at this point. Those familiar with the no-fault battle may recall that one of the reasons floated for the new statute was the elimination of institutionalized perjury - for years spouses who wanted to get around the statute had been cooking up fault, with one party agreeing to lie under oath and assume the blame. Yet isn't the sham that was drummed up to replace it, where cause is purportedly unnecessary and one party is able to chuck a marriage and family, far worse? Isn't an "irretrievably broken" standard meaningless if its only purpose is to give the law a veneer of respectability, when in fact divorce can be granted on one party's subjective say so alone? Indeed, if one spouse can obtain a divorce merely for the asking, lying is simply irrelevant, as are the reasons for wanting out, including that the marriage is "irretrievably broken." How is no-fault divorce then any different from saying "I divorce you three times?" Perhaps that's just what nagged at Justice Muller.

And so, in the immortal words of Yogi Berra: "It ain't over till it's over."

Would that the ongoing debate would forge understanding, compassion and a true meeting of the minds about an effective way to restore marriages and preserve families.

 

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09:13 AM on 05/10/2011
I am the defendant in a divorce which so far has treated my marriage as a contract of convenience.
10:59 PM on 03/18/2011
I have charged my husband with cruelty, infidelity, addiction, desertion, humiliation, and neglect. In my state, he can still be held accountable for his terrible behavior toward his family.
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Beverly Willett
Writer, lawyer, Co-Chair, CDR
12:34 PM on 03/20/2011
What state is that if you don't mind my asking? NY and some other states have duel systems so in NY you can still sue on grounds of cruelty, etc. The problem lies where you're the innocent party and get sued and your spouse can get a divorce over your objection even if you want to try and preserve your marriage and family. I hope things work out for you and your children.
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Beverly Willett
Writer, lawyer, Co-Chair, CDR
12:47 PM on 03/20/2011
P.S. Under dual systems, you can sue under either ground. A lecture I went to said that they weren't sure why the legislature had retained fault-grounds as well, and that it may have been for religious reasons for certain constituents.
01:55 PM on 03/20/2011
Tennessee. He committed all the behaviors mentioned, refused counseling and reconciliation, reneged on our mediation agreement, and then filed a contested divorce. My response was to charge him with all grounds applicable. He has denied all these and is now in the process of avoiding interrogatories and requests for documents. The next step will be a court order to force these disclosures from him.
08:42 AM on 03/18/2011
Much of the "scientific information" this article rests its laurels on comes from The Institute for American Values' Center for Marriage and Families director Elizabeth Marquardt. Just sayin'.
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Cameron Hoppe
Where's your evidence?
10:06 PM on 03/17/2011
As far as I can tell, it comes down to two rules:

1. If you have any income and/or significant savings, don't get married.

2. If you're not willing to walk away from every object you own that can't fit into a backpack in order to escape from a wretched jerk hell-bent on making your life miserable, don't get married.
04:35 PM on 03/17/2011
Perhaps I'm missing something, but since I only just submitted my paperwork, let me go forth:

My soon-to-be ex, who didn't want the divorce, had his say, in the form of a separation agreement. His rights were protected and he agreed by signing. The uncontested divorce paperwork refers to this paperwork, as well as my absence from the home.

Where in this process wasn't he given his opportunity to 'protect himself'??? And does going back to fault-based divorce somehow give him MORE protection?
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MsCanuck
Wife, Mother, New Democrat, Pro-Choice, Atheist
08:48 PM on 03/17/2011
No, going back to fault would only gives the other party more opportunities to drag the process on and on and on, and spend $$ on useless court appearances, because in the end, the divorce will be granted. You just have to remember what behaviour you chose to adopt in front of those you're supposed to love - read children - what they will see is a vindictive, vengeful, out to hurt the other parent.
09:59 PM on 03/17/2011
Velly solly. Going back to Fault-based would give BOTH Equal Protection under the Law, both Due Process, BOTH Obligation of Contract, and BOTH Trial by Jury of Peers if so desired.

Going back to Fault-Based would place it under all the judicial rules that all other cases must go througfh.

It would make divorce...LEGAL.
10:36 AM on 04/19/2011
He is protected from fickle divorce, the protection isnt about property rights etc...its for the simple reason that, in droves, women are filing divorces because of "emotional neglect" etc.
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traciwhitney
Founder of TwoHappyHomes.com
12:07 PM on 03/17/2011
Ugh. Yet another reason not to get married again. Can the courts please stay out of my personal life, and my body for that matter? Frankly, what business is it of anyone's if I want to get a divorce or not? And who says that most ex-spouses and children are "emotionally devastated" after a divorce? I truly believe that kids are MUCH worse off in a home where one or both of the parents wants out. And I speak from a place where as a child I wished my parents would get a divorce.

I think there should be a law that requires every couple to go to divorce mediation and forgo litigation altogether - now THAT would make for easier and more peaceful divorces!
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Beverly Willett
Writer, lawyer, Co-Chair, CDR
01:27 PM on 03/17/2011
The law must rightfully get involved when anyone's actions intrude on those of others, otherwise it's known as anarchy. Everyone is entitled to their opinion, but your opinion about the effects of divorce on children is just that -- one person's opinion. And the research shows that the impact on the majority of children is severe. There's much to read on the subject, but one good place is "Between Two Worlds" by Elizabeth Marquardt. You say you wish your parents had divorced; but if they had you have no idea how much worse your life might have been. Meditation is not a cure all, not can mediators force a settlement. Those with the upper hand in terms of money and power can, and still do, use it to press their own interests.
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traciwhitney
Founder of TwoHappyHomes.com
01:58 PM on 03/17/2011
Exactly my point - only one person's opinion. The only people that matter in such a situation are the people that are actually in it. "And the research shows that the impact on the majority of children is severe." - I would like to see this research and find out who sponsored it, because until you live it personally, they are just numbers. Everyone has the power and ability to put their children first without staying in an unhealthy marriage. There is also research that shows that children of divorce grow up to be happy, well-adjusted adults.

I'm all for protecting one's rights against abuse, but that's not what I got from this article, the final statement itself proposes to "restore marriages and preserve families". This is the problem with law and pro-family, pro-choice, or whatever, the lines are far too blurry and attorneys and politicians force their own personal agenda on the public.

No, I wouldn't have known if I would have been happier, but I know my parents would have. Eventually everyone needs to grow up and take responsibility of their own happiness.
04:20 PM on 03/17/2011
You seem to think that parties are equal when one of two wants to divorce. It is not. **The marriage is over the moment someone has decided it is no longer right.** Period. Demanding mediation, 'reasons', fault are all pointless and ultimately humiliating and infuriating crucifictions by 3rd parties who've deigned to 2nd guess the mind(s) and hearts of those involved.

I'm indescribebly thrilled that I can file for uncontested divorce. My marriage included many abusive humiliations from a spouse who doesn't want divorce. Thanks to this law, I no longer have to lie and accept 'fault' for something I didn't do (as none describe the true circumstances), nor do I have to air painful emotional revelations to strangers in ending what is a personal arrangement.

You defend NOTHING with your continued advocacy other than stridently insisting to insert government into a personal affair.
07:43 PM on 03/17/2011
And who says that most ex-spouses and children are "emotional­ly devastated­" after a divorce? I truly believe that kids are MUCH worse off in a home where one or both of the parents wants out.

Statistics will NOT support your opinion here.
08:43 AM on 03/18/2011
The Institute for Ameican Values says so. What could that mean?
recless
Evidence first. Believe later. Maybe.
01:02 AM on 03/17/2011
Just another reason to remove the government from marriage. Founders of this nation didn't need government approval for their marriages. The government's intrusion came much later. That intrusion should be removed.
08:45 AM on 03/17/2011
You are absolutely correct. It's just another way of controlling and grabbing more money.
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MollyLive
Educator and peaceful divorce blogger
11:12 AM on 03/16/2011
Frankly, I don't see why anyone would want to stay married to a person that doesn't want to be married to them. If one person wants out, why should the other person force him or her to stay? Do you really think that children benefit from parents who are miserable together or one spouse that feels obligated to stay? The best scenario for kids is to have parents that love each other, treat each other with respect, and care about each other's needs. That can't be legislated. It can only be chosen freely.
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Cathy Meyer
Writer, Divorce Consultant
08:41 PM on 03/16/2011
Molly, it isn't about wanting to stay married to someone who doesn't want to be married to you. It is about giving voice to both parties of the marriage during the legal process of divorce. In most states you can get a no-fault divorce with "grounds." A spouse can divorce and list abuse or infidelity as the grounds for divorce. Under no-fault divorce laws the accused has no right to defend themselves against such accusations. And the accuser has no obligation under law to prove the accusations.

Nowhere in law, does a defendant have fewer rights than in family court. I have huge respect and admiration for you but what people who go through a fairly conflict free divorce don't realize is, they are not the norm. Most divorces are riddled with conflict, one side pitted against the other by adversarial attorneys with neither side having a recourse. No-fault divorce laws take away the ability to legally fight back when an estranged spouse is hell bent on destroying you financially and emotionally. That is abusive behavior which can and should be legislated.
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tomteboda
10:02 PM on 03/16/2011
That's exactly how I felt in my divorce, Cathy. my husband literally was fighting with the intent to destroy me, and even though I didn't ask for anything except to keep my car (a 15 year old vehicle, letting him keep the new ones) and my clothes he still drug me through the courts for 2 years, racking up thousands of dollars in legal bills for me. That he was physically and emotionally abusive, and cheated (he remarried in another country before our divorce was even final) was inadmissible, and in the end he kept everything, and I was stuck with a bunch of lawyer fees . The judge even had the temerity to chide me for "forcing" the issue to court when I refused to sign a "settlement" that would've put a restraining order on me. . . even though he was the one who was violent, and multiple people in the community had orders against him!

I have a really annoyed 'thank you' to the California legal system for enabling him to do what he did best longer.. make my life miserable.
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Deborah Moskovitch
Divorce Coach, Author, Speaker, Guide
09:46 AM on 03/17/2011
Interesting article, and well said.........and Cathy you also make some great points. No matter which way you look at it, divorce is a hugely emotional time and requires support and understanding by the system. As the saying goes, divorce is not a war to be won but a problem to be solved.
08:46 PM on 03/16/2011
No one is standing at the front door with a shotgun telling a person that they cannot leave the marriage, but by golly, there should be some kind of discipline for anyone who makes a bunch of promises and then abandones every one of them, with no thought of what happens to those left who want to keep the family intact.
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Spartan112
SPARTANS!? What is your profession?
10:37 AM on 03/17/2011
So you want a legal "shotgun".
10:17 AM on 03/16/2011
I'm not sure how I feel about this one. Maybe I'm reading it wrong, but I don't think a spouse should contest divorce if the other truly wants out. You can't make someone love you. At the same time, spouses who want out are getting their freedom, so to speak. Should they pay for that freedom? In some circumstances, yes.
04:56 PM on 03/16/2011
well said. i too, am not sure how i feel about litigating "fault" in order to obtain advantages in asset division and child related matters. i would think that in resolving custody and $$ issues, any relevant evidence is considered.
07:32 AM on 03/22/2011
It isn't, which is only part of the problem.
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Erica Manfred
10:11 AM on 03/16/2011
Hooray, hooray, finally a legal challenge to no-fault divorce. Thanks for this article Beverly. You lay out all the issues with great clarity. Do you think this suit will give rise to other actions in other states? If he wins, how will it effect no-fault divorce in the rest of the country? Maybe this is the way to fight no-fault divorce.
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Spartan112
SPARTANS!? What is your profession?
07:21 AM on 03/17/2011
NY state will simply go back and change the law to correct mistakes...Beverly is tilting at windmills.
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Beverly Willett
Writer, lawyer, Co-Chair, CDR
11:23 AM on 03/17/2011
Unfortunately, that could happen. If it does, it still won't solve the problems that divorce has created in our society and the havoc it has created for children. Let's hope clearer heads will prevail. In case you hadn't noticed, there are a lot of folks out there who agree and a lot of collective windmills can generate a lot of power. I can't honestly believe that you don't think that all the social ills, financial problems and wreckage divorce has created is a good thing and that there isn't some need for improvement somewhere. If so, it would be good to have your positive thoughts for where and how we can make improvements.
09:20 AM on 03/16/2011
Thanks for getting my juices going on this one. I wondered since Mr. Strack had the right to be heard and of course he has that right but I wonder if he had been a women would it had been the same.???
And how have we failed as the public to elect a group of politicians who has failed us yet again for not taking the time to think through a problem. My mind is spinning .
09:17 AM on 03/16/2011
"In other words, Mr. Strack had the right to be heard and contest his wife's claim that the marriage was irretrievably broken, even though divorce might ultimately be granted over his objection."

I've never been divorced, so bear with me on a few dumb questions.

How do you force someone who wants out of a marriage to stay? Even if counseling, mediation, etc., are all required to divorce, for those who want out, how do you stop them? Seems it would end up that the two are "married in name only". This would stop remarriage, but it wouldn't be a marriage between the original two.

Just curious how that would work.
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jf12
When I saw her I marveled greatly.
11:04 AM on 03/16/2011
It's only about penalties i.e. money. When one party leaves, it is abandonment at least.
12:10 PM on 03/16/2011
The abandonment issue is a huge factor. Should courts consider this?
08:22 AM on 03/16/2011
While no-fault comes saddled with a slew of problematic fallout for many couples, in the end do we not weigh the right of the unhappily married against the worse of two flawed possibilities?

The idea that NY was dead last goes more to the unfortunate "preachy legislation" of demanding provable grounds via a whoppingly expensive method. This may make life more difficult for some, but why not admire the rights it gives to others in more precarious situations?

It just can't be that simple. It's not all bad, and it's not all good. Let's take a more comprehensive look and admit that life just ain't all black and white.
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Cathy Meyer
Writer, Divorce Consultant
08:30 PM on 03/16/2011
"do we not weigh the right of the unhappily married against the worse of two flawed possibilit­ies?"

I guess it would depend on why they are "unhappily married." I would be able to admire the rights it gives to some if those who were made miserable their pursuit of "happiness" weren't so numerous. The number of emotionally devastated children and ex-spouses far outweighs those who found happiness due to no-fault divorce laws.

Life ain't black and white BUT laws are supposed to protect one as much as they protect the other and in the case of no-fault divorce the laws fall short.
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Spartan112
SPARTANS!? What is your profession?
07:25 AM on 03/17/2011
The children are emotionally devastated living in homes with unhappy parents... and honestly, if one is unhappy aren't both? And if the other is, then what is it that keeps them happy? The others unhappiness? Ignorance?
07:59 AM on 03/17/2011
I understand, Cathy, and see that we agree tht the laws are meant to offer certain protections. However, protection should not include erroneous judgment.

I could never sit in judgment, for example, on why someone is unhappily married. It's not my business; the pain belongs to that family. Of course children need protection from harm. Who would ever say differently. Yet we know that it's the level of conflict that is the culprit. And children in the home where there are high levels of conflict are often relieved of their trauma when the marriage is dissolved and they're no longer subjected to it. (It may be loud conflict and it may be the dastardly hell of silence - we both know how harmful they are.)

We add to that the difficult to "show proof" allegations where a child's being subjected to other sorts of abuse (from physical to sexual) inside the home, and ask these parents to prove grounds through the most flawed, expensive, unbalanced, insane system in the courts?

You're right. The children need protecting, but from short-sightedness, not from necessary divorces.
10:21 PM on 03/17/2011
One must NOT have more rights than the other in court.
06:31 AM on 03/16/2011
Great article Beverly. The celebrants as you say who uncorked the champagne bottles no doubt are the Bar Assn., who are the only ones as everyone knows wins. No-fault or unilateral divorve is arguably the dissolution of marriage and there are a long list of both private and public entities who have an indisputable financial interest for it.
04:32 PM on 03/17/2011
How do lawyers 'win' with No-Fault? Seriously. We sat with an attorney on Saturday to complete the uncontested divorce paperwork. He will charge $2,100 and file. Period. No multiple rounds of paper to the court regarding 'fault' and proof of same, no multiple court visits by everyone in front of a judge.

Done. In. One.

He's probably lost half his business because of this.

Lawyers didn't cheer this - they fought it.
10:25 PM on 03/17/2011
How do lawyers 'win' with No-Fault?


They don't have any work to do. They pass by the secretary's desk, drop the new names that go in the blank spaces, and SHAZAM...another pile of money goes into the bank. Why hire an attorney. The divorce IS going to be granted to the one who files, with or without an attorney. You're paying at attorney to ACT like he's working and he's laughing all the way to the bank, and will eat the next meal with the judge and the other attorney.
07:38 AM on 03/22/2011
Actually, they were for it.
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For Fathers
The entire court system has become criminal
06:09 AM on 03/16/2011
No-fault divorce is a state orchestrated extortion racket that is destroying childrens lives.