EDITORIAL: Until divorce does us part
The 49th state in the union passed no-fault divorce in 1985. This month, New York finally dumped its long-standing objections and appears poised to join the rest of the country - dead last, by more than two decades.
While those facts may make for a good punch line at the end of an Albany joke, the bills passed by the Assembly on July 1 - and by the State Senate two weeks earlier - will have serious consequences for uncoupling in New York.
The legislation is a set of three bills, which require the support of Gov. David A. Paterson to become law. He has indicated he will sign them when they reach his desk, probably later this summer.
One bill adds the no-fault provision, allowing one spouse to end a marriage without proof of wrongdoing by either party. New York couples can still divorce the old-fashioned way - by alleging adultery, abandonment or cruel and inhuman treatment. Or, consenting couples can still work out terms, separate and wait a year for the divorce to become final - a rare scenario today.
Under no-fault, one spouse could end the marriage by swearing that it has broken down irretrievably for at least six months. That would dissolve marriages with less trauma and more dignity.
Not only would no-fault end the lying that couples often resort to in a desperate effort to prove blame, but according to studies from no-fault states, it eases the emotional fallout for children. Parents who are freer to part are less likely to lash out in accusations about the other parent.
The other two bills in the package deal with finances. One sets up a formula for alimony - or "maintenance," as it's called in New York - from the moment a divorce process begins. Now, the courts can take six months or more to decide on support payments, which can discourage a spouse with little income from filing - even when stuck in an abusive marriage.
The third requires the higher-income spouse to pay for lawyers' fees and expert testimony for both sides - provided that spouse's income is at least one-third higher, and subject to a judge's discretion. The goal, and it's a good one, is to ensure equal representation for both spouses. But costs should be held within reason.
New York's Office of Court Administration has advocated for years for such upfront coverage of legal fees by the wealthier spouse. Judges become frustrated when one spouse has a lax lawyer. No-fault would also reduce the number of cases clogging dockets, which will give judges more time to deliberate in tough cases.
So with all of the positive aspects of this package of bills - not to mention years of evidence that no-fault works well in other states - what took New York so long?
One roadblock was opposition from the Catholic Church, which believes divorce will become too easy to obtain. Indeed, New York has a very low divorce rate. In other states, the pent-up demand sent divorces skyrocketing short-term after no-fault was adopted, but the rate leveled off after a decade. When the Republicans held the Senate majority for 43 years, the church was able to block this change.
Women's groups also stalled passage because they are split - the state chapter of the National Organization for Women opposes no-fault and is lobbying Paterson to reject the changes. The Women's Bar Association and others are in favor.
Tying the two financial bills to no-fault was key in winning over the majority of the women's groups. Assemb. Helene Weinstein (D-Brooklyn), chair of the Judiciary Committee, shepherded the trio of bills and wanted them packaged as one. But the very rare opportunity of Senate passage - and the possibility that the GOP could regain Senate control after this November's elections - helped push the package through, seemingly at the last minute.
In exchange for the Assembly's concession to three bills, the Senate compromised by removing a formula guiding final financial settlements. Designed by the American Association of Matrimonial Lawyers, the formula will instead be used for "interim maintenance" - while the case is pending - to see how it works.
The state Law Revision Commission, a five-member board of law professors and practicing attorneys, will evaluate the formula's effects and deliver a preliminary report within nine months. Their priority should be ensuring against unjust awards that leave women and children destitute.
New York still has a long way to go. Other states - such as California, which passed the first no-fault statute in 1970 - are again pushing the envelope, with collaborative divorce and mediation. Mental health counselors and divorce financial analysts also play a role there. New York's system has been too adversarial, treating divorce like a crime, instead of the dissolution of a contract.
With the governor's signature, New York will move up into 1985. We shouldn't wait another quarter century to bring it fully up to date. hN
