After many years of opposition, New York State has adopted a law permitting “no-fault” divorce, making New York the last state permitting no-fault divorce in one fashion or another. The no-fault law, together with other new laws impacting divorces (see below), are now in effect for new divorce actions. It does not apply to any action commenced prior to the effective date.
The no-fault law permits either spouse to seek a divorce upon the assertion that “the relationship between husband and wife has broken down irretrievably for a period of at least six months”. There is no requirement that the parties agree that this is the case, as long as one party has made this assertion under oath. This eliminates the necessity of a person seeking a divorce to make specific and detailed assertions that his or her spouse had committed acts which were sufficient to warrant a divorce.
While this provision removes the need to assert “fault” in order to obtain a divorce, a final judgment of divorce will not be granted until the issues of custody, visitation, support, spousal maintenance, counsel and expert fees, and equitable distribution of assets and debts have been agreed upon by the parties or decided by the court. However, by eliminating the need for spouses to make accusations and place blame for the deterioration of the marriage, the no-fault law may enable the parties to address these other issues, without the added emotion surrounding the making of potentially inflammatory allegations. This will also eliminate the need for parties, who mutually wish to be divorced but who do not have sufficient fault-based grounds under the old law, to fabricate grounds simply in order to be divorced.
The addition of the no-fault option does not eliminate the option to assert grounds for obtaining a divorce, which include adultery, abandonment, cruel and inhuman treatment and legal separation for over a year.
Revisions to Spousal Maintenance Law
While less publicized, New York has also adopted a provision that provides guidelines for temporary spousal maintenance, to be paid while a divorce action is pending, based on a complicated formula that requires two sets of calculations based upon the incomes of the respective spouses. In certain cases, additional factors may also be considered in establishing an appropriate level of temporary maintenance. The purpose of this provision is to attempt to place both spouses on equal financial footing while the divorce is pending, to provide each party equal financial ability to evaluate and present his or her case. This provision also only applies to new divorce actions.
Following the divorce, the financial circumstances of the parties may be changed as a result of the agreements or determinations made in resolving the divorce. As such, the determination of any post-divorce maintenance is determined on yet a different set of factors. The law does not provide any guideline formula for maintenance following the divorce.
Given the complex nature of the calculation, and the fact that it ultimately remains within the discretion of the court to establish both temporary and permanent maintenance, it will be up to the courts as to how they apply this law and the impact it may have on future divorce matters.
Revisions to Provisions Regarding Counsel and Expert Fees
A third law has gone into effect which affects divorce matters. This law is also intended to “level the playing field” during the course of a divorce action by encouraging courts to require that payments be made from the spouse with more available resources to the spouse with less available resources to assist in the payment of counsel fees and/or necessary expert fees. Experts are often required in divorce matters to establish the value of a home, pension, business or other asset, or to review and draw conclusions from financial statements, records and documents.
The court continues to exercise its discretion in assuring that each party is placed in a position to be adequately represented in the divorce. Since this proposed law simply provides presumptions to be applied by the court and does not provide any specific formula for determining an award of counsel or expert fees, and since the decision on whether to award such fees and the amount of any award will ultimately remain within the discretion of the court, it will be up to the courts as to how they apply this law as well and the impact it may have on future divorce matters.
To discuss any issues or questions regarding a potential divorce, please contact Lawrence J. Schwind at 585-225-2470.