No Fault Divorce in New York
Who is to blame when a marriage fails? In New York, the passage in 2010 of the No Fault divorce law means that it is no longer necessary for either spouse to prove "grounds for divorce." The days of long, costly court battles about "who did what" to cause the marriage to fail are over. No one has to prove a specific reason for divorce, such as cruel and inhuman treatment, abandonment, or adultery, because New York no longer requires "grounds." Ellen B. Holtzman is a matrimonial attorney in Rockland County, New York who has handled many No Fault divorces since No Fault was enacted into law in New York. Here, Ellen answers some frequently asked questions about No Fault divorce.
Q. What exactly is a No Fault divorce?
A. The No Fault law states that Courts in New York may grant a divorce in response to an application by either spouse -- without requiring proof of any wrongdoing by the other spouse. Today, the law requires only that one spouse claim that "the relationship between husband and wife has broken down irretrievably for at least six months."
Q. If you are getting a No Fault divorce, why do you still need a lawyer?
A. You still have rights that your attorney needs to protect in the areas of property division, child support, child custody, and maintenance. These issues are still open and need to be resolved. It may be that the important issues of custody or support or maintenance cannot be worked out in negotiations, and a judge may have to decide. For that reason, it is advisable to retain a trial lawyer.
Q. Do both parties have to agree to get a No Fault divorce?
A. No. A No Fault divorce requires only one party to make allegations that the marriage is broken and cannot be repaired. The other party cannot prevent the divorce from being granted based on a No Fault grounds.
Q. What were the goals of the No Fault divorce law?
A. The main purpose of the No Fault statute is to permit married couples who are divorcing to focus on the significant issues of the divorce rather than proving that the other spouse is at fault. The most important issues include child custody, child support, and the financial issues -- maintenance (support for the non-monied or lesser-monied spouse), and equitable distribution of marital assets and liabilities.
Q. In your opinion, has the No Fault law achieved its goals?
A. Yes, it has. No Fault is the way to avoid long, costly, emotionally draining -- and often very acrimonious -- battles over who is to blame for the break-up of the marriage. Since No Fault became law, I have not commenced a single "Fault" divorce. I focus instead on the significant issues of child custody, child support, maintenance, and property division. I advise clients that there is no downside to the No Fault divorce.
Q. How is a No Fault divorce different than divorce before 2010?
A. No Fault changes the focus of the divorce. Before No Fault was enacted by the Legislature, a spouse who wished to divorce was required to claim grounds for divorce, such as adultery, cruel and inhuman treatment, abandonment, imprisonment of their spouse for three or more years, or that they had entered into an agreement for a period of one year and had lived apart in accordance with the terms of the agreement. If the other spouse wanted to prevent or delay the divorce, his or her lawyer could challenge the grounds set forth by the person seeking the divorce. Once that happened, the judge to whom the case was assigned was required to hold a trial to determine whether or not there was reason for the divorce. Unless the spouse could prove grounds, the Court could not grant a divorce, no matter how unhappy or utterly miserable he or she was.
Q. Do some people still obtain "Fault" divorces?
A. Some attorneys still do divorces based on fault. I don't see the point. Some people think, mistakenly, that if they go for a "fault divorce," they may improve their chances of getting sole custody or higher maintenance. That is absolutely not true.
Q. My spouse's behavior has truly damaged the whole family, and especially the children. In no way should he or she share custody. Is there really no advantage to bringing an old-fashioned "grounds for divorce" action?
A. Proving fault will not help your case. If the important issues of your divorce cannot be resolved through negotiation, then all of the facts -- including the other party's behavior during the marriage -- as they relate to the issue of who should have custody, or the amount of maintenance, or whatever the issue, can still be documented and presented to the court. There is no need to expend time and money on a "fault divorce."
Q. If you choose a No Fault divorce, does this mean you do not have to "go to court"?
A. Not necessarily. As mentioned, if you and your attorneys cannot resolve the important issues, you may have to let a judge decide. While It is far better for all concerned if an agreement can be reached without going to court, the reality is that sometimes court is unavoidable. That is why you should choose a trial attorney who has a record of success in the courtroom. You do not want to go to court without an experienced trial attorney.
Q. Is it less expensive to get a No Fault divorce?
A. To the extent that there does not have to be a trial over the "blame" issues, yes, it is less expensive. You will not be wasting financial and emotional resources over who is at fault.
Q. Does No Fault mean that getting a divorce takes less time?
A. It does save time since you no longer have to try the fault issues. However, the overall time depends upon the resolution of the financial and custodial issues.
Q. If you have a custody dispute, can you still get a No Fault divorce?
A. Absolutely. The grounds for divorce have nothing to do with the issue of custody.
Q. If both parties agree on the terms of the divorce, does there have to be a waiting period before a court will grant a No Fault divorce?
A. Not in the State of New York.