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Legislators Press for Change in Dissolution Laws
New York's Legislature has been busy working on proposed laws that, if passed into law, will affect the practice of family law. In some instances the legislature has tried and failed before to pass similar laws, but those seeking change have had their hopes buoyed by shake-ups in the legislature.
No-Fault Divorce
On May 18, a bill (A9753/S3890) cleared the Senate Judiciary Committee that, if passed, would allow a party to divorce his or her spouse if “the relationship between husband and wife has broken down irretrievably” for at least six months. Child custody and equitable distribution issues would, however, have to be settled prior to the judgment of divorce.
As the only state in the union that does not have a no-fault divorce statute on the books, New York, say critics of the status quo, is more than a bit behind the times. The litigation required under the current system can be lengthy and expensive. People can be stuck in dead marriages with no recourse, unless they move to another state, establish residency and file for a no-fault divorce there. Not everyone has the opportunity or the means to do this. Even partners who agree that they would like to divorce are forced to lie to judges in order to establish fault, and judges often feel obligated to turn a blind eye on the deception in order to help the parties move on. In promoting the bill, its sponsor, Sen. Ruth Hassell-Thompson (D-WF) said, “We are saying that you don't have to create these onerous tales that you say about each other in court, in a public forum that do damage to both parties.”
Those who oppose a change in the divorce law include some women's rights advocates, who argue that the fault system gives the less powerful partner in a marriage more leverage to gain needed financial concessions from the one wanting a divorce. Some religious groups, which see the proposed legislation as a threat to the stability of families, have also expressed opposition to the adoption of a no-fault divorce provision. For example, prior to the Senate Judiciary Committee's vote, representatives of the New York Catholic Conference argued that the current divorce ground permitting divorce after one party has abandoned the other for more than one year is better than the pure no-fault option being considered, as it requires couples to mull over the advisability of divorce for at least one year prior to going through with it. (The current bill's terms would also require a waiting period, although a shorter one: One of the parties would be required to state under oath that the marital relationship had been irretrievably broken down for at least six months before divorce could be granted.)
The outcome for the proposed legislation may be different than it was for previous incarnations of the no-fault divorce bill. Earlier versions were blocked by the Senate, which until last year was dominated by Republican party members.
Maintenance
A senate committee has also approved a bill that sets out guidelines for determining the amount and duration of maintenance due to a non-monied spouse. The bill, A10984/S7740, is also sponsored by Sen. Hassell-Thompson. In a release, Sen. Hassell-Thompson explained the need for the proposed legislation: “Most prejudiced by current mechanisms for distribution of post-marital income are moderate- and low-income spouses who cannot afford the lengthy, expensive litigation required to establish a right to maintenance. The unpredictability and inconsistency of current maintenance awards creates an incentive for the less-monied spouse to settle to avoid the cost of litigating for an uncertain outcome. As such, less-monied spouses in low-income households are forced to give up legitimate claims to marital income.”
Counsel Fees
On May 18, the Assembly passed A7569/S4532, which would create a rebuttable presumption that the monied spouse in a matrimonial action should pay the non-monied spouse's expert fees and counsel costs. Judges currently have discretion to order such payments, but the non-monied spouse must ask for and prove the need for help, and an award may come at or near the end of the litigation, if at all. The bill is sponsored by Senate Majority Conference Leader John L. Sampson, who says the current system unfairly hampers the non-monied spouse's ability to litigate on an equal footing with the monied spouse.
Janice G. Inman is Editor-in-Chief of this newsletter.
No-Fault Divorce
On May 18, a bill (A9753/S3890) cleared the Senate Judiciary Committee that, if passed, would allow a party to divorce his or her spouse if “the relationship between husband and wife has broken down irretrievably” for at least six months. Child custody and equitable distribution issues would, however, have to be settled prior to the judgment of divorce.
As the only state in the union that does not have a no-fault divorce statute on the books,
Those who oppose a change in the divorce law include some women's rights advocates, who argue that the fault system gives the less powerful partner in a marriage more leverage to gain needed financial concessions from the one wanting a divorce. Some religious groups, which see the proposed legislation as a threat to the stability of families, have also expressed opposition to the adoption of a no-fault divorce provision. For example, prior to the Senate Judiciary Committee's vote, representatives of the
The outcome for the proposed legislation may be different than it was for previous incarnations of the no-fault divorce bill. Earlier versions were blocked by the Senate, which until last year was dominated by Republican party members.
Maintenance
A senate committee has also approved a bill that sets out guidelines for determining the amount and duration of maintenance due to a non-monied spouse. The bill, A10984/S7740, is also sponsored by Sen. Hassell-Thompson. In a release, Sen. Hassell-Thompson explained the need for the proposed legislation: “Most prejudiced by current mechanisms for distribution of post-marital income are moderate- and low-income spouses who cannot afford the lengthy, expensive litigation required to establish a right to maintenance. The unpredictability and inconsistency of current maintenance awards creates an incentive for the less-monied spouse to settle to avoid the cost of litigating for an uncertain outcome. As such, less-monied spouses in low-income households are forced to give up legitimate claims to marital income.”
Counsel Fees
On May 18, the Assembly passed A7569/S4532, which would create a rebuttable presumption that the monied spouse in a matrimonial action should pay the non-monied spouse's expert fees and counsel costs. Judges currently have discretion to order such payments, but the non-monied spouse must ask for and prove the need for help, and an award may come at or near the end of the litigation, if at all. The bill is sponsored by Senate Majority Conference Leader John L. Sampson, who says the current system unfairly hampers the non-monied spouse's ability to litigate on an equal footing with the monied spouse.
Janice G. Inman is Editor-in-Chief of this newsletter.
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