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.
Follow Beverly Willett on Twitter: www.twitter.com/BeverlyWillett
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.
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?
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.
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!
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.
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.
Statistics will NOT support your opinion here.
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.
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.
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 .
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.
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.
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.
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.
Done. In. One.
He's probably lost half his business because of this.
Lawyers didn't cheer this - they fought it.
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.