There are several bills now under consideration in the New York State Assembly and Senate that would provide for “No Fault” divorce. “No Fault” divorce would give litigants an option of obtaining a divorce on a basis that does not require proving grounds, such as abandonment, adultery or cruel and inhuman treatment.
Under current law when each spouse agrees to the divorce they must still agree that one of the litigants will allege grounds, such as abandonment or cruel and inhuman conduct, which the other will not deny. In the alternative, the couple who reaches an agreement on all issues other than grounds has the option of entering into a separation agreement, but then waiting a year to obtain a “conversion” divorce.
Under current law when a spouse opposes the granting of the divorce, a trial is required. The cost of a contested divorce trial goes beyond the financial burden that it places on the couple and can exert a tremendous emotional burden on the litigants as well as their children.
Legislation now under consideration seeks to amend the Domestic Relations Law to provide for a basis for divorce that does not require proving fault. Presently, there is Senate Bill 3890, sponsored by Senator Hassell-Thompson and Assembly Bill 3533, sponsored by Assemblyman Bradley which contains the same language and would provide for Section 170 of the Domestic Relations Law to be amended to add a new subdivision 7 which would permit either spouse to obtain a divorce upon a sworn statement that there has been an irretrievable breakdown in the marriage for at least six months. A hearing would not be required. However, unless there are exigent circumstances placed on the record by the court, the divorce judgment would be granted only after ancillary issues have been resolved including the equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and expert fees and expenses, and custody and visitation with the infant children of the marriage.
Also under consideration in the Assembly is Bill A2580-A, sponsored by Assemblywoman Weinstein. This Bill adds two grounds for “No Fault” divorce. It would provide for Section 170 of the Domestic Relations Law to be amended to add a new subdivision 7 which would provide for the ground of irreconcilable differences, which would be established by showing that there is no reasonable prospect of reconciliation. Further the Bill provides that after 12 months of living separate and apart there shall be a presumption of no prospect of reconciliation. Similar to the Bradley Bill, the Weinstein Bill provides that the court shall not grant a divorce until all economic issues between the parties are resolved. However, unlike the Bradley Bill, the Weinstein Bill does not provide for the granting of a divorce prior to a resolution of all economic issues when there are exigent circumstances.
The other significant difference between the Bradley Bill and the Weinstein Bill is that the latter seeks to significantly amend other provisions of the Domestic Relations Law. As an example, the Weinstein Bill seeks to provide that the loss of health insurance benefits shall be a factor to be considered by the court in an award of property distribution and in an award of maintenance. It also provides for an award of permanent maintenance subject to modification if the party seeking maintenance is unable to maintain the marital standard of living due to certain enumerated factors. Further, the Bill provides for amending Sections 237 and 238 of the Domestic Relations Law to provide for a presumption of counsel fees to a non-monied spouse.
Also being considered is Bill A05543 being sponsored by Assemblywoman Titus. This Bill also seeks to amend Section 170 of the Domestic Relations Law to add a new subdivision 7 that would add irreconcilable differences as a ground for divorce. Further it would amend Section 236 of the Domestic Relations Law to add an additional factor of fault in deciding distribution of property and maintenance in a divorce proceeding. Unlike the Bradley Bill or Weinstein Bill the Titus Bill would not require that all other issues be resolved prior to the court entering a judgment of divorce.
To read the entire text of the proposed Bills discussed in this article, as well as a Summary go to assembly.state.ny.us and under Quick Bill Search insert the applicable bill number.
Mary Ann Aiello, PC practices exclusively in the area of matrimonial and family law. She is a co-chair for the Matrimonial Committee of Women’s Bar Association of the State of New York and is a frequent CLE lecturer.
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