NO-FAULT DIVORCE FOR NY? YES: Kenneth G. Standard

New York is one of only two states, the other's Alaska, that still requires proof of fault in order to get a divorce.

Individuals here must prove cruelty, which is the infliction of emotional or physical pain, adultery or spousal desertion (or, no sex) for at least one year. ...

People get divorced for reasons that have nothing to do with adultery, abandonment or cruelty but are nevertheless valid. Requiring them to sue on one of those grounds is inappropriate.

Fault-based divorce is widely believed to aggravate rather than ease the conflict between spouses because it focuses on the wrongs that one has committed against another. It also gives unintended and unfair leverage in settlement negotiations to a spouse who refuses to agree to one of these grounds.

Some have argued that we shouldn't make it easier to get divorced because this will lead to unnecessary breakups of more couples. But experience with no-fault systems in other states shows this is unfounded and divorce rates 10 years later were no higher than before the change.

Others worry whether the change to no-fault will make it easier for the person with the larger income to leave the marriage too easily -- without adequately compensating the spouse. But the change we advocate would have no impact on couples' ability to negotiate a settlement and would give no added weight to either side in the law related to the division of assets.

According to a Bar Association survey, many judges in divorce cases believe their time would be better spent focusing on support, custody, visitation and the division of marital property rather than deciding who's at "fault."

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posted by Eve at 7:15 PM | link

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