No Fault Divorce in New York

According to matrimonial trial attorney Ellen B. Holtzman, the fact that the vast majority of divorces in the State of New York are now No Fault divorces is a good thing for anyone who has decided to divorce. In 2010, New York finally passed a No Fault Divorce law, which means that the State of New York no longer requires that "grounds for divorce" be proven when a marriage fails.

Ellen Holtzman says, "The term No Fault Divorce can be a little confusing. Some people think it means that the problems that led to the breakdown of the marriage do not matter. That is not the case. Those problems and concerns will be taken into account during divorce negotiations or, if a settlement cannot be reached, during a court proceeding. So unless you and your spouse have agreed in advance about everything that must be settled before the court can grant your divorce, the issues that led to the marital breakup will be considered. The court cannot grant a divorce until all of the issues of the divorce, including property division, spousal support, child custody, child support, and other matters have been determined."

Ellen added, "What No Fault does mean is that spouses can skip an expensive and time-consuming first step that used to be required before they could even begin to address the important issues about the future. Before 2010, one spouse had to prove a specific reason for a fault divorce, known as grounds. Cruel and inhuman treatment, abandonment, adultery, or the confinement of one party in prison for three or more consecutive years were among the grounds or faults that had to be proven. In some cases, these litigated divorces could take years. No Fault divorce means that those long court battles over the grounds for divorce are over."

Based in Rockland County, New York, Ellen B. Holtzman and her associates have handled hundreds of No Fault divorces since the No Fault Divorce law took effect. Here, Ellen answers some frequently asked questions about No Fault divorce.

Q. What is a No Fault Divorce?

A. The No Fault Divorce law allows the courts in New York to grant a divorce in response to an application by either spouse without proof of any wrongdoing by the other spouse. The law requires only that one spouse claims that the relationship between the two parties "has broken down irretrievably for at least six months." However, as with a "fault" or "grounds" divorce, the court will not grant the judgment of divorce until all of the legal issues stemming from the dissolution of the marriage are resolved, either by the two parties or the court.

Q. What are "all of the issues" that must be resolved before I can get a No Fault Divorce?

A. New York law states, "No judgment of divorce can be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses, as well as the custody and visitation with the infant children of the marriage have been resolved by the parties or determined by the court and incorporated into the judgment of divorce."

Q. What is the difference between an uncontested divorce and a No Fault Divorce?

A. An uncontested divorce occurs when there are no disagreements between you and your spouse over any of the divorce-related issues: custody, child support, maintenance (also called alimony), equitable distribution of marital property, etc. A No Fault divorce is based on the irretrievable breakdown of the marriage. It can be either uncontested or contested as to the divorce-related issues.

Q. Why would I still need a lawyer if I'm getting a No Fault Divorce?

A. Your New York No Fault Divorce cannot be granted until all of the issues of property division and spousal support are resolved. If you have children, all of the issues around child custody, child support, parenting time, etc. must be agreed to by the parties or decided by the court. A knowledgeable matrimonial law attorney can protect your rights and interests in all of these areas. Without a lawyer who concentrates her law practice in divorce, you could be at a serious disadvantage. Usually, these important issues are worked out in negotiations between your attorney and your spouse's attorney but if negotiations fail, a trial may be necessary. In that case, a judge will have to decide. Divorce and child custody issues can be extremely complex, so it is advisable to retain a matrimonial trial lawyer who is skilled and experienced in both negotiation and divorce trials.

Q. My spouse's behavior has seriously damaged the whole family, especially the children. In no way should they share custody. Is there really no advantage to bringing an old-fashioned "grounds for divorce" action?

A. No. Proving fault will not help your case. It will only increase the amount of time and money it takes to get the divorce. If the important issues cannot be resolved through negotiation, then all of the facts -- including the other party's behavior during the marriage as it relates to the question 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 benefit to expending the time and money on a "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 into law, 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 a lawful reason for the divorce. Unless the spouse could prove grounds, the Court could not grant a divorce, no matter how unhappy or utterly miserable they were.

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. If you choose a No Fault divorce, does this mean you do not have to "go to court"?

A. Not necessarily. As I said, 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 matrimonial trial attorney who has a record of success in the courtroom. You do not want to go to court without an experienced trial attorney whose practice is focused on matrimonial and family law matters.

Q. Is it less expensive to get a No Fault divorce?

A. Yes, to the extent that there does not have to be a trial over the "blame" issues, it is less expensive. Since you are no longer required to waste emotional and financial resources over who is at fault, you will be able to focus on the critical issues of your future and, if there are children, the future of your children.

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. Yes, you absolutely can. If the issue of custody cannot be settled between you and your spouse, it will be decided by the judge. The judge will make his or her decision after a trial on the basis of "the best interest of the child." (See Child 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.

Q. In your opinion, has the No Fault Divorce 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.