Melville divorce attorney Diane Carroll discusses the success of no-fault...

Melville divorce attorney Diane Carroll discusses the success of no-fault divorce in New York State. (March 8, 2012) Credit: Danielle Finkelstein

Divorce filings are up on Long Island since the state's no-fault divorce law took effect 17 months ago, but breaking up isn't always as simple as had been touted.

In Nassau County, the number of new cases grew 6 percent last year compared with 2009, the last full year under the old law. In Suffolk, filings rose 9 percent.

That increase mirrors what happened in the 49 other states that adopted no-fault divorce before New York joined them on Oct. 12, 2010. After a year or two, the rates usually fall back to prior levels, said Alton Abramowitz, president-elect of the American Academy of Matrimonial Lawyers. "There's a pent-up demand," he said.

Although simple divorces are going through easily, judges have issued conflicting opinions about what the law calls for when divorces are contested. And, the local bar associations are complaining about a related statute on spousal support and calling for changes.

In uncontested divorces, couples are concentrating, as the law intended, on negotiating the needed financial and child custody settlements, lawyers say.

Under no-fault, a spouse can simply claim a marriage has "irretrievably" broken down for at least six months before filing for divorce. Before, a spouse needed to cite grounds such as abandonment, adultery or cruel and inhuman treatment -- and prove them in a trial if the other spouse contested them. Alternatively, couples could legally separate by consent for a year.

A Suffolk County woman who asked to be identified only as Dina, 38, said her divorce last year couldn't have gone more smoothly: "The papers were filed in April and were signed in August. No court appearance, no arguing back and forth, no stress. No-fault was a perfect solution."

But differing interpretations of the law have lawyers and estranged couples waiting for higher court decisions to decide whether a court trial is still required if one spouse contests the claim of irretrievable breakdown. Several judges have ruled yes, others say no.

In January, a 79-year-old Dix Hills woman had to testify and was cross-examined in a trial about why she thought her 56-year marriage was broken before a Suffolk County Supreme Court judge granted her a no-fault divorce.

However, other judges, including at least three in Nassau County, have ruled a spouse cannot contest a sworn claim by an estranged partner of a marital breakdown, and that it's not up to a judge to determine its merits.

Most matrimonial lawyers say a trial is unnecessary under the new law. But the issue will have to be sorted out by a higher court.

Calculating maintenance

A related statute that was part of the state legislature's no-fault package has also generated legal controversy. Many lawyers and judges complain about its method for calculating temporary maintenance -- the spousal support paid by the financially stronger spouse while the divorce is negotiated.

Critics say the formula based on the spouses' incomes fails to spell out how to deal with household expenses such as mortgage and utility payments, and leads to inconsistent results as judges fill in the blanks themselves.

Some divorce lawyers say that the more moneyed spouse may be socked with too high a payment. But attorneys who support the statute say it has been fairer to women. A state commission expects to issue recommendations on possible revisions to the statute in April.

Advocates for victims of domestic violence have been won over by the no-fault law. They originally opposed it because they felt the history of abuse might not be factored into divorce settlements. But as it turned out, judges are much more likely to quickly award support and attorney fees that make it possible for women to leave an abusive home and get adequate legal representation, they said.

"It's been working very well for most of our clients," said Lois Schwaeber, director of legal services of the Nassau County Coalition Against Domestic Violence.

For simple divorces between couples who work out their own financial settlements, no-fault has been a boon.

Dina said her 14-year marriage ended without difficulties last year. "Since we had no children, [or] property to divide, it was a simple process. No complications, no appearance in court. The hardest part was waiting."

She added, "I did hire an attorney just to make sure all the paperwork was in order, but even that wasn't truly necessary. For my circumstance, I am glad that New York has no-fault and made a difficult situation easier."

Melissa Manarino, 34, of Holbrook, who has a paralegal degree, did the paperwork to help her boyfriend get his no-fault divorce. He and his wife had been informally separated for five years, each had custody of one child and had no joint assets or income to consider, she said.

"They just wanted a divorce, no maintenance, no child support," she said. "They remain friends and never wanted to deal with any court drama . . . We did his divorce after the no-fault law since it was so easy. Otherwise they would have had to do separation papers first, then wait a year . . . the husband and wife -- would never claim [as the old law required that] the other did something so wrong that they needed a divorce."

Divorce 'took half the time'

Manarino, who had gotten divorced in 2009, said her boyfriend's divorce "took half the time as mine and $4,000 less."

Still, for couples with children, property and assets to divide -- and often widely unequal incomes supporting their marital lifestyle -- a divorce can remain a complicated and tempestuous legal proceeding. The change in the temporary maintenance statute hasn't made it easier, say its critics, who note that it is complicated and can take a long time, and many attorney fees, before a judge makes a determination.

For now, said no-fault's State Senate sponsor Ruth Hassell-Thompson (D-Westchester-Bronx), "As a general rule, No-Fault Divorce in New York State is helping scores of New Yorkers resolve their matrimonial problems in a much more civil and healthier way."

Any effort to amend the law, she said, should wait to "allow the appellate courts to do their jobs and resolve any questions surrounding the proper application of the law."

  • Additional ground for divorce of irretrievable breakdown of marriage for at least six months, based on sworn oath of one spouse
  • Judges must use a formula based on spouses' relative incomes to set the support that the higher-earning spouse must pay while the divorce process in under way.
  • Judges are required to award the less moneyed spouse money for attorney fees upfront rather than at the end of a proceeding.
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