NO MORE FINGER POINTING! NEW YORK’S NO-FAULT DIVORCE LAW

NO MORE FINGER POINTING! NEW YORK’S NO-FAULT DIVORCE LAW

In August 2010, the New York Legislature passed a “no-fault” divorce bill which added to the list of possible fault-based grounds for divorce in New York, the additional ground of “…that the parties’ marriage has been irretrievably broken for a period of six months or more prior to the commencement of the action.” This is codified in NY Domestic Relations Law section 170(7). New York was the last state in the United States to enact and permit no-fault divorce and this change constituted the first change to New York’s grounds for divorce since 1966.

Since the no-fault statute was enacted in 2010, a party seeking a divorce is no longer placed under the legal burden of proving that the other spouse did or did not do something which could trigger one or more of the fault-based grounds (such as adultery, cruel and inhuman treatment, abandonment, etc.). The Court, proceeding in a case under a fault-based ground, must find that the Plaintiff spouse has met the burden of proving the legal elements of that ground or grounds so as to enable the Court to issue a final Judgment of Divorce to dissolve the parties’ marriage, divide property, award spousal support (alimony), child custody, child support and resolve all other issues of the parties’ marriage.

With fault-based divorce, if the other spouse did not want to be divorced, that spouse could block the divorce by asserting defenses to the divorce grounds relied upon and that would then cause a separate trial on the grounds for divorce. This would stop the rest of the case from proceeding until the issue of grounds was resolved.

If at the close of proof at the grounds trial, the Court found that the party seeking the divorce did not meet the burden of proof as to the fault grounds alleged, the divorce was dismissed “as a matter of law”, and the parties left the Court still married. Accordingly, without there being grounds for divorce, the Court did not possess the power to hear any further issues arising from the parties’ marriage nor did it have the jurisdiction to divide the marital property or resolve any other issues of the parties’ marriage. The above result could cause the party whose divorce case was dismissed to re-file and try again, possibly to be met by the same fate as the first attempt.

New York was, under the fault-based system, essentially keeping couples together when they should not have been nor wanted to be. The collateral damage on the parties themselves and the parties’ children having to continue living in an unhappy household ripe with “marital strife” was inevitable.

In 2010, New York finally decided to move away from the Dark Ages of divorce and accept that the world had changed.

By Robert B. Pollack, Esq., principal attorney at The Pollack Law Firm, P.C.: Our firm is focused solely on Nassau and Suffolk County divorce, separation and all other issues of matrimonial law, family law and mediation.

The Pollack Law Firm, P.C., serving clients in Nassau and Suffolk County, is always available to assist and represent parties in divorce and all other matrimonial and family law matters. Please call today to schedule a free consultation: (516) 938-3330.

DISCLAIMER: This article is intended to provide only general information for entertainment purposes and should never be relied upon as legal advice. One should seek the assistance of experienced matrimonial counsel to assist in explaining the law, options and making important decisions in any divorce, matrimonial or any family law matter. By reading this article, no attorney / client relationship arises in any manner whatsoever.

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