Family Law Reform Blog
Tuesday, February 21, 2006
  NY NOW leader opposes Unilateral Divorce in NY Times column
February 19, 2006
Op-Ed: Divorce New York Style


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
support guidelines.

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
for children.

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.

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