On August 15, 2010, New York Gov. David Patterson aligned New York with the rest of the United States by signing no-fault divorce into law. Now, every state allows divorce without requiring a court to assign blame to one spouse for the breakdown of the marriage.
Getting Divorced is Now Easier Than Ever
New York's no-fault divorce law went into effect on October 12, 2010. Before that, a spouse wanting a divorce had to accuse the other of a specific legal breach such as abandonment, adultery, prolonged incarceration, or cruel and inhumane treatment.
Now, New York simply requires a claim that "[t]he relationship between husband and wife has broken down irretrievably for a period of at least six months." Only one spouse need avow to such under oath. Previously, one spouse could prevent the divorce if the circumstances of the marriage did not fit into one of the few required grounds.
Supporters claim the change will "end an epidemic of institutionalized perjury in divorce courts," as it was common for a spouse to lie about the reasons for a divorce to conform to the legal requirements. Some spouses claimed affairs that never occurred, lack of intimacy in over a year despite being pregnant, and psychological cruelty for being called fat. Brooklyn Law School Professor Marsha Garrison pointed out, "we want people to respect the law, not to engage in that kind of scamming."
In 2009, 23 percent of divorces were contested. Establishing the proper grounds for divorce, and fighting the other spouse's objection, was often an expensive endeavor that could require a trial lasting several weeks. Under the new system, rich and poor have an equal opportunity to get a divorce. Eliminating the fault finding process allows parties and courts to focus on resolving more practical and important matters such as spousal support and child custody.
Issues such as spousal support (alimony), property settlement/distribution and child custody still must be resolved before a court can enter a final divorce decree. However, New York's new law made subtle changes that affect both spousal support and child custody. A change was also made to how attorney's fees are paid.
Temporary Spousal Support
The new law allows a court to award temporary spousal maintenance (alimony) while the divorce is pending if one spouse's income is less than two-thirds of the other spouse's. The new formula to determine temporary maintenance is the lesser of:
- Thirty percent of the higher earning spouse's income minus twenty percent of the lesser earning spouse's income; or
- Forty percent of the couple's combined income minus the lesser earning spouse's income
Prior to this formula, courts had discretion in awarding temporary maintenance based on the needs of the parties. While the new formula eliminates inconsistency in awards, it assumes each marriage operates under the same financial circumstances. This will inevitably lead to inequitable awards in certain cases.
Payment of Legal Fees
New York's new divorce law creates a presumption that the spouse with the higher income will pay both spouses' attorney's fees for the divorce. Previously, the lower earning spouse had to prove to the court (after the divorce was finalized) that he or she needed the higher earning spouse to pay his or her attorney's fees. Such an award was rare.
This high burden often dissuaded lower income spouses from hiring an attorney and many people would simply represent themselves. Under the new law, the playing field is leveled so that lower earning spouses can hire counsel without worrying how they will pay the bill. While this is good news for only half of divorcing spouses, it is certainly an equitable change from what had previously been an inequitable balance of power in New York divorces.
Modification of Child Support Orders
The new law also allows modifications in child support orders in the event of a "substantial change in circumstances," which is defined as a fifteen percent or more change in either party's gross income. However, a mere reduction of one party's income is insufficient unless the reduction was involuntary and that party has diligently tried to find other employment.
The goal of this change is certainly to protect children, the innocent bystanders in divorce proceedings, from suffering when the custodial parent struggles to provide for their basic needs. It also ensures that children benefit from a parent's increased good fortune should the paying parent have a fifteen percent or more increase in income. Like the other provisions of the changed divorce law, this provision seeks to ensure predictability and equity in the dissolution of a marriage.
A Whole New Ballgame
As these changes have only recently gone into effect, the actual impact of New York's modified divorce law is yet to be seen. What might look good on paper may not translate to equitable and desirable outcomes. Only time will tell if New York's new divorce law is really an improved divorce law.
The elimination of the fault finding process will inevitably shift the battle in divorces to temporary and permanent spousal support determinations. Because of this shift in focus, it is important that a person seeking a divorce consult with an attorney to guide them through the process. If you are considering divorce, contact a knowledgeable New York divorce attorney to discuss your situation and the options available to you.
