Family Law Reform Blog
Yes, New York, You Do Have No-Fault Divorce
Lately, all kinds of journalists have been repeating the mantra that "New York doesn't have no-fault divorce", as in this story about the Gest-Minelli divorce. It's one of those things that everyone seems to believe, but which just ain't so. New York has no-fault divorce the way it was originally proposed -- based on the mutual decision of consenting adults. New York's no-fault ground is the first in this list of divorce grounds:
Grounds for Divorce in New York
- living apart for one year pursuant to separation decree, judgment or written agreement, with satisfactory proof of substantial performance of same.
- cruel or inhuman treatment (such that defendant's conduct so endangers plaintiff's physical or mental well-being as to render cohabitation unsafe or improper)
- abandonment by defendant for one year
- imprisonment of defendant for three consecutive years after marriage
- adultery by defendant
Code: Domestic Relations Law, § 170
Utah enacts divorce prevention / trial separation package
Text of the legislation, as enacted
In March, 2007, Utah legislator Lorie Fowlke wrote to Smart Marriages:
I am an attorney and Utah state legislator, and attended your conference last year in Atlanta. I just passed the nation's first divorce orientation legislation, HB 128 and it has been funded! This bill is in addition to the already required 2 hour divorce education class for parents. The divorce orientation class is to help them understand the impacts of divorce, provide resources for strengthening their marriage, and resources to go through the divorce and deal with post-divorce issues with less pain, if they proceed. It also allows couples to file for a temporary separation, WITHOUT filing for divorce, for up to one year. During the separation, they must take the course. If they proceed with the divorce, the relatively small filing fee for the temporary separation is applied to the divorce filing fee. It passed the HOUSE unanimously and the Senate with only one dissenting vote. The court administrator's office is ready to begin implementation through the office that now administers the divorce education class for parents.
I would like people to know about this legislation so that they can introduce something similar in their state. I appreciate all that you do for marriage and families in this country.
Copy and paste this URL into your browser and you will have several options
to retrieve the text or even listen to committee and floor debates:
Lorie D. Fowlke
Note: There is now a blog set up specificallyto track similar initiatives in Utah:Utah Divorce Prevention News
Economist nails the problem with divorce
"I hear from young people who would love to get married and stay married because they don’t want to put their own children through the misery of divorce that they endured. But these young people are frightened, and not confident about their ability to sustain married life.
I hear from women whose husbands abandoned them and their children, for no particular reason. The law in most states does not protect the partner who wants to stay married, but the one who wants divorce. ... Marriage is the most basic form of social cooperation. It is the institution in which children are born and reared. When spousal cooperation breaks down, the substitutes for it are intrusive, ineffective, and expensive. ... We owe the young better than this. "
From:Cheerleading for Divorce: Socially irresponsible reporting.By Jennifer Roback Morse
NJ faster divorce bill: bad idea
The AP reports:
N.J. Senate acts to speed up the divorce process
New Jersey couples who cite "irreconcilable differences" would be able to get divorced in six months under a bill passed in the Senate yesterday.
State law requires couples to wait 18 months. The bill, approved 30-5, has been considered by an Assembly committee but not the full Assembly. It was supported by the New Jersey Bar Association and opposed by the New Jersey Catholic Conference. - AP--
Posted 12/5/06 athttp://www.philly.com/mld/inquirer/news/local/states/new_jersey/16166188.htm
This is a bad idea. New Jersey is currently tied for the 9th-lowest divorce rate in the U.S. (according to 2004 divorce rates). Its current law requires an 18-month wait for no-fault divorce when only one spouse wants the divorce. Americans for Divorce Reform's research consistently shows very low divorce rates in states, like New Jersey, that have long divorce waiting periods that are shortened when both spouses consent to the divorce.
-- John Crouch
Hunch Unravels Immigrant Wedding Scam
These sham marriages for green cards are a logical result of unilateral divorce laws, but I guess that for a generation or so, inhibitions and a vague lingering respect for social institutions prevented almost everyone from exploring these kinds of possibilities.
Welfare Reform Isn't Working - Los Angeles Times
Welfare Reform Isn't Working - Los Angeles Times
More people are employed, but the goal of preserving families has been a failure.
By Amy L. Wax, AMY L. WAX is a professor at the University of Pennsylvania Law School.
What's Indiana's divorce rate? Nobody knows
ABC7Chicago.com: What's Indiana's divorce rate? Nobody knows
September 11, 2006 (FORT WAYNE, Ind.) - Activists and elected officials sometimes cite Indiana's divorce rate as proof that the institution of marriage needs protection, but no one really knows what that rate is.
Indiana is one of five states that don't track divorce statistics.
But not knowing the divorce rate doesn't stop lobbyists from pushing the state to take steps to lower it. State Representative Robert Kuzman, a Crown Point Democrat, notes that several covenant marriage bills have been filed over the years with the purpose of reducing divorce, even thoudh no one knows what the divorce rate is.
The Legislative Services Agency, the research arm of the General Assembly, has been unable to find any official divorce rates for Indiana.
Indiana House Speaker Brian Bosma says a 50 percent divorce rate often is cited in testimony on bills before the General Assembly. He says it's a statistic the state should track.
(Copyright 2006 by The Associated Press. All Rights Reserved.)"
What's the worst that could happen in a divorce?
ABC News has a fun and comprehensive story called "Divorce Wars
" (7/20/06) documenting the crazy, hateful things people do to each other in divorces. It may be short on redeeming "social and political import" but as a divorce lawyer and critic I liked it a lot. Fun quotes from it:
Raoul Felder says: "the wife and daughter are going to end up with the entire proceeds of this house that is going to be worth much more because he blew it up."
"It's easy to forget divorce usually begins because at least one party thinks it will solve his or her problems. As writer Dorothy Dix once noted, 'Many people think divorce is a panacea for every ill. … They find out, when they try it, that the remedy is worse than the disease.'"
Family & Legal Scholars Criticize ALI's "Principles of the Law of Family Dissolution"
Reconceiving the Family: Critique of the American Law Institute's Principles
of the Law of Family DissolutionAvailable on amazon.com
Just released, July 17, 2006.
The American Law Institute's (ALI) "Principles of the Law of Family
Dissolution" is "arguably the most sweeping proposal for family law reform
attempted in the U.S. over the last quarter century." In "Reconceiving the
Family" a group of 27 top law scholars of left and right challenge and
critique various aspects; from ALI's call to eliminate every last vestige of
fault (or morality) from family law, to its call to treat cohabiting couples
the same as married couples to (in what the editor calls "unearned trust")
the attempt to transfer parental rights to so-called defacto parents. This
is a must read for anyone interested in policy, legal, or moral debates over
marriage and family law. It's a Cambridge University Press book and
expensive, but worth it.
(copied from SmartMarriages.com)
Man Accidentally Divorces Wife in Sleep; authorities force him to follow through
Man Accidentally Divorces Wife in Sleep
: "Village elders ordered a Muslim man in eastern India to leave his wife after he accidentally ... uttered the Urdu word for divorce, 'talaq,' three times in his sleep, prompting his worried wife to discuss the matter with her friends ....
Muslim leaders in the couple's village in West Bengal state found out and decreed that Ansari's unconscious utterances constituted a divorce, ...
But 30-year-old Ansari said he had no intention of leaving his wife of 11 years.
The religious leaders said that before remarrying, the couple would have to be apart for at least 100 days and that the wife, Sohela, would also have to spend a night with another man and then be divorced by him. ... the couple has been ostracized because of their refusal to abide by the decision of the village leaders."
Reconciliation procedures in divorce court are too little, too late
This article from the Malaysian newspaper "Sun to Surf"
observes some of the same things that I and others have been saying about marriage reconcilation procedures in American state divorce laws -- they begin too late in the divorce process to save marriages, and the people administering them do not take them seriously. (Half the states of the U.S. and many European countries have such laws -- ADR recently did a study of them
and a proposal on how to improve them
What it takes to save marriages
Maria J. Dass
13 Mar 2006
PETALING JAYA: Marriages heading into trouble need to be saved way before hitting the brink of divorce.
As such, efforts to protect the sanctity of marriage as contained in the Law Reform (Marriage and Divorce) Act 1976 may not be effective as most cases referred to the Marriage tribunal are already past the reconciliation stage.
Help can only make a difference where a marriage has not reached the stage of divorce, but when one or both spouses file for divorce, this usually means that they have passed the stage of reconciliation, said Malaysian Consultative Council for Buddhism, Hinduism, Sikhism and Christianity Harcharan Singh.
In most cases, couples will issue a joint petition where they are not required to refer the matter to the marriage tribunal, he said when responding to questions on the effectiveness of the marriage tribunal in reconciling ailing marriages.
However, if one party wants to work at the marriage, then it is referred to the tribunal where efforts will be made to reconcile them, failing which a certificate will be issued stating that all conciliatory efforts have failed, he said.
The party which is asking for the divorce is not compelled to attend the hearing with counsellors, so efforts to patch things up are often futile, said Harcharan.
Speaking of his experience in the Sentul Gudwara conciliatory board, he said: "In 24 years, only one couple came to us for help - and that too only one party, as the other was not willing to reconcile."
Efforts to help couples going through a bad patch have been taken up by some temples and churches.
The Catholic Church, for example, has a marriage encounter programme where couples who have been married for more than five years are encouraged to participate. It focuses on helping couples rediscover their relationship and mend tensions that have been building up over the years.
theSun on March 13, 2006, front-paged a report that the marriage tribunals set up to counsel couples against divorce were a farce as of the 4,307 couples counselled last year, only 103 marriages (2.4%) were saved.
This was because inexperienced counsellors issued certificates (so that divorce petitions can be heard in court) without seriously trying to reconcile them.
On April 21, 2004 Justice Datuk V. T. Singham chided the Batu Gajah marriage tribunal in the High Court in Ipoh.
The judge had said that instead of making serious attempts to save a marriage, the tribunal preferred to issue certificates stating that reconciliation was not possible.
He said the tribunal took just 15 minutes to conclude its session.
Women, Family and Community Development Minister Datuk Seri Shahrizat Abdul Jalil said if the allegations are true, it goes against what her ministry has been propogating.
"I will study the matter and bring it up at the cabinet meeting."
When the Law Reform (Marriage and Divorce) Act was enacted in 1976, the statute was intended to protect the sanctity of marriage.
Thus, ensuring all means were taken before even proceeding with a divorce.
Updated: 07:35PM Mon, 13 Mar 2006
State putting Church out of adoption business - The Boston Globe
State putting Church out of adoption business - The Boston Globe
Maggie Gallagher sent us a copy of this article -- it says that the state of Massachusetts is refusing to renew Catholic Charities's license to coordinate adoptions because it does not place children with gay adolptive parents.
De Facto Parenthood
De Facto Parenthood: The reformers' latest unwholesome innovation in family law.
by Sara Butler Nardo
Weekly Standard 03/06/2006, Volume 011, Issue 24
Mike Thompson of the Texas ADR chapter sent us this article by our friend Sara Butler Nardo of the Instititute for American Values.
This excerpt shows the frighteningly loose legal standard for declaring someone a "de facto parent". --
"The Washington court, following Wisconsin's model,
established a four-part test to be used by judges in determining whether a
person has standing as a de facto parent:
(1) the natural or legal parent consented to and fostered the parent-like
relationship; (2) the petitioner and the child lived together in the same
household; (3) the petitioner assumed obligations of parenthood without
expectation of financial compensation; and (4) the petitioner has been in
a parental role for a length of time sufficient to have established with
the child a bonded, dependent relationship parental in nature.
"Rather than answering a simple question--Does the adult have a biological
or adoptive relationship to the child in question?--judges will award
parenthood depending on whether the relationship appears sufficiently
"parent-like," a notable expansion of state power in the realm of family
"The courts have justified the creation of de facto parenthood by arguing
it serves the best interests of children. In reality, however, it works at
cross-purposes to the institution that most essentially serves children's
interests--marriage. ... In reality, de facto parenthood serves adults more than children ... .
"This new circular definition of parenthood--a parent is a person who
performs the function of a parent--is part of a larger trend in family law
that sees the law as the creator of the family ... the words we use to
describe this most vital social institution--family, mother, father,
marriage--do not correspond to natural relationships, but are mere labels
that the state is free to apply as it sees fit.
"In the case of the label "marriage," the proposed change ... has been widely and loudly debated. The legal definition of "parent," meanwhile, is already quietly changing."
Simpson breakup shows that to many, there's no truly no-fault divorce
This is from a celebrity gossip column, but I think it is actually an important insight about whether people in general can adjust to unilateral no-fault divorce.
- JC Angie Fenton, columnist for the Louisville Courier-Journal, writes:
"There's no such thing as a no-fault divorce -- at least not in the court of public opinion.
"As of press time, 71 percent of People readers and 76 percent of Star magazine fans blamed Jessica Simpson for the break up of her marriage to Nick Lachey.
" But fear not for the blond beauty. The New York Daily News reports Simpson's peeps are working overtime to improve her image by dishing the dirt on Lachey to every gossip mag around."
Why marriage shouldn't be like a corporation
The New Pantagruel blog recently featured a hilarious and thought-provoking satire
of a playfully-written but ultimately serious article in the San Francisco Chronicle
that said corporations should provide marriages, offering consumers an infinite variety of definitions, combinations, rules, and exit options.
NY JUDGE WOULD MAKE DIVORCE TOO EASY
A great, hard-hitting but compassionate column about the unilateral divorce proposal in New York state.
NY NOW leader opposes Unilateral Divorce in NY Times column
February 19, 2006
Op-Ed: Divorce New York Style
By MARCIA PAPPAS
EARLIER this month, New York's Matrimonial Commission recommended that the
state allow unilateral no-fault divorces. This is a bad idea, and,
frankly, it's unnecessary.
New York already has what is in effect a bilateral no-fault divorce law.
This means that if both spouses want out of the marriage, they can divorce
without any apparent reason after living separate and apart for one year
after signing a separation agreement. In fact, the vast majority of
divorce cases are settled without court intervention. These settlements,
termed separation agreements, then become the basis for the divorce
decree. The process, because it doesn't require much involvement by the
courts, is less expensive for both parties.
The problem with unilateral no-fault divorce is that it hurts women by
removing the incentive for the moneyed spouse (who is usually the husband)
to make a settlement. Instead of negotiating with a dependent spouse ˜
whose only leverage for avoiding an impoverished post-divorce life for
herself and her children may be her assent, or lack of it, to divorce ˜
the husband can simply go to court and obtain an uncontested divorce. Even
if child custody and property division issues haven't been resolved, a
judge can grant a divorce for "good cause" if say, the husband's
girlfriend is pregnant.
And here's where things get tricky. In these cases, resolution of child
custody and property division can drag on for years, to the detriment of
the abandoned poorer spouse. And because unilateral no-fault cuts down on
the incentive to settle cases by agreement, it can take a lot of money and
time in court to make such divorces final.
For women, in general, having to go to court instead of being able to
negotiate a settlement is a misfortune ˜ especially in New York, where, as
the Office of Court Administration has repeatedly acknowledged, the court
system has a bias against women. Moreover, a settlement is also beneficial
for women because both parties can agree to terms that the court cannot
order. For example, in New York, the court can require child support until
the child is 21, but the parties can, and often do agree outside of court
to support payments until graduation from college.
And there's no question that unilateral no-fault divorce hurts women's
economic well-being. A study in Connecticut conducted from 1977 to 1987,
showed that under unilateral no-fault divorce laws, fewer women ˜ only 37
percent ˜ were awarded the marital home as compared with 82 percent under
fault divorce. In 1970, California became the first state in America to
adopt unilateral no-fault laws. These laws have had a devastating impact
on the women in that state. For instance, in San Diego, the likelihood of
a woman receiving alimony awards went to 30 percent in 1976 from 66
percent in 1968.
Unfortunately, it appears that New York will move to institute unilateral
no-fault divorce. If this is inevitable then, at the very least, the state
Legislature needs to remedy the problems faced by poorer spouses in a
dispute by awarding them counsel and expert fees commensurate with the
fees being spent by the moneyed spouse. Such a mandate would go a long way
to level the playing field and ensure fairness for the non-moneyed spouse
in the court system. The Legislature also needs to establish fair and
equitable economic maintenance guidelines, just as the state now has child
Furthermore, in the case of custody disputes, the Legislature should
require that child custody be awarded to the parent who was the primary
caregiver during the marriage to ensure stability and continuity of care
A primary caregiver presumption would also cut down on a litigation tool
in which one parent agrees to forgo a custody battle if the other parent
agrees to a less favorable financial settlement. Richard Neely, a lawyer
in West Virginia, has acknowledged that he often gave that advice to his
male clients. When he became chief justice of the West Virginia Supreme
Court of Appeals, he was responsible for the passage of a primary
caregiver law. Unfortunately, under pressure from fathers' rights groups,
West Virginia's Legislature has since revoked that presumption.
New York is often mentioned as the only state in America without
unilateral no-fault divorce laws. But that doesn't mean that fault divorce
is bad. New York is the only state where the court has jurisdiction to
order child support to 21 ˜ and that's good. Sure, there are things about
New York's divorce laws that could be fixed, but a process that takes time
and weighs the various arguments is the only way to ensure fairness and
financial stability for everyone involved.
Marcia Pappas is the president of New York's chapter of the National
Organization of Women.
Statement on New York Divorce Reform
Here's what I told a columnist about this today --
New York has been affected by the nationwide culture of unilateral divorce, but its much tighter divorce law does help keep marriages from falling apart -- New York has one of the nation's lowest divorce rates. The current law also favors negotiation over unilateral action. That's a major reason why out-of-court "Collaborative Divorce" has been so successful in New York.
If the Assembly wants to do something about ugly "fault" divorces and encourage collaborative divorces, they should do so directly, by switching the waiting periods around -- have a one-year waiting period before filing a "fault" divorce, and a much shorter waiting period for truly "mutual consent" divorces, where the couple has worked out an agreement on all the details, such as custody and finances.
But that is very different from unilateral "irreconcilable differences" divorce, a tragic experiment the first time around, and a farce if it is repeated now. The Assembly should look carefully at the experience of the rest of the U.S., where the well-intended 1960s movement to replace fault with a more therapeutic, consensual process went tragically awry. Many states passed laws saying that before granting a divorce, judges should carefully examine whether the couple really had "irreconcilable differences", referring them to counseling whenever it might help. But these laws quickly broke down into mere "unilateral divorce", because judges did not have the time or training to implement them, so they decreed that filing for a divorce was proof of "irreconcilable differences".
Nationwide, unilateral divorce has produced more divorces, longer divorces, and uglier divorces.