Finding Fault with No Fault Divorce Laws

When I was young, my parents instilled in me the values of hard work, frugality and virtue. Their morals were steeped in the Gospel of Jesus. As middle class parents of five children, they worried about our futures, hoping that their progeny would realize the type of social mobility promised to every citizen, as espoused by the American Dream.  As descendants of European immigrants, my parents found little patience, e.g., for the new immigrant, those who felt entitled to the benefits of America simply by crossing the border, and little time, e.g., for those who abused the welfare system and took money without paying back to society. 

            My dad listened to the radio titan, and conservative talk show host Bob Grant; he embraced Rush Limbaugh's ideas and shared them with his buddies in the New York City Fire Department. Every night during dinner we would listen to Grant. It was always entertaining, especially when he would tell liberals to “get off my phone.” It was during this time that my neighborhood changed, Valley Stream, Long Island welcomed in a flux of families from Queens; quickly dollar vans zoomed passed my house. Next stop: the Green Acres Mall. As my neighborhood changed I discovered that Grant’s voice, and conservatives like him, didn't represent me, or what I thought.  They did not seem to have anything to do with the values of Jesus. 

            In 2002, I went to Marist College, the college of Bill O’Reilly, because I wanted to be a Roman Catholic priest. I needed time to stretch my legs, fall in and out of love, learn how to analyze facts, discriminate between entertainment and original thought. In college I studied history, as well as the works of Tielhard de Chardin, Pablo Freire, and Martin Luther King, Jr. I studied them, and hoped to pattern my life upon theirs. 

            Then at Hofstra University, where I completed a masters degree, I discovered the works of Franz Kafka, including his most prescient text, The Trial. I never wanted to meet the distant, inaccessible judicial figures that foiled the life of Josef K.  I believed that the American court system was fair and impartial, justice its ultimate purpose. 

            Three years after leaving the Society of Jesus to get married, I found myself in the American court system for the first time as a plaintiff.  I sought a divorce from my ex. I desired a just and fair settlement. I found a court system that was impersonal, dissembling, and arrogant; it had no interest in knowing who I am as a person. 

            In cases where a marriage contract is irretrievably broken a divorce can proceed without delay, this is known as No Fault Divorce. New York State was one of the last states to enact legislation codifying No Fault Divorce into state law. Who was Governor David Patterson trying to protect in 2010 when he signed no-fault divorce into law? 

The New York Times reported in 2010 that “The no-fault divorce bill allows a couple to dissolve the marriage by mutual consent and without requiring one spouse to accuse the other of adultery, cruelty, imprisonment or abandonment. It also allows one spouse to divorce the other unilaterally.” No Fault Divorce is not 21st Century law because it negatively labels one person as a breadwinner and the other person as needing maintenance for a period of time as assessed through a formula. In their haste to pass this law, the New York Legislature interpreted men and women’s roles differently. 

            It would take a greater legal mind than my own to comment on the negative effects of this law since the passage of marriage equality in the United States in Obergefell v. Hodges in 2015. Opponents of this law, like the Roman Catholic Church, considered the effect in the rise of divorces, while the National Organization of Women raised concern about wealthy men taking advantage of women.

            After the No Fault legislation passed, Governor Patterson commented, "These bills fix a broken process that produced extended and contentious litigation, poisoned feelings between the parties and harmed the interests of those persons – too often women – who did not have sufficient financial wherewithal to protect their legal rights. I commend the sponsors on providing a real and effective legislative solution to a problem that has for too long bedeviled ordinary New Yorkers."

            This law is not a real and effective legislative solution because it treats people without money or power as less than ordinary, e.g., without care for a person’s history or experience, and as mere means to speeding up cases that involve men and women, it therefore, does not consider same-sex marriages, or the experiences of two men or two women in a marriage. In this case what the law is, is just what it should not be.  By applying the principles of opposite marriages to same-sex marriages the court system has failed in its attempt to normalize and universalize general jurisprudence.

While marriage may now be universal, same and opposite-sex marriages do not always meet the criteria for universalizability. Note: I am not arguing that no fault divorce law is legally invalid because same-sex marriages do not pass the litmus test of Natural Law theory, e.g., that for some same-sex marriage is morally impermissible. Rather, I am arguing that it is time to reconsider this law in light of marriage equality, changes in gender norms and in response to the decline of religion in America and the rise in the disparity between the upper and lower classes. 

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