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Lauren Guidice
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787
NEW YORK AND DIVORCE: FINDING FAULT
IN A NO FAULT SYSTEM
Lauren Guidice
INTRODUCTION
As the millions of children of “fault” divorces in New York
can attest, the damage involved in declaring fault in order to
dissolve a marriage is palpable and enduring. Many are not old
enough to understand why the intricate process may take years to
complete, or why their mothers assert “cruel and inhuman”
treatment when their fathers never seemed like the monster that
phrase made him out to be. For over two decades, New York
remained stuck in an archaic fault-based system
1
—requiring
couples to point fingers and air dirty laundry in order to divorce—
while the rest of the country progressed and developed unilateral
divorce systems.
2
The fault requirement of the dissolution of marriage in New
York has long been considered to be unnecessary and damaging.
3
J.D. Candidate, Brooklyn Law School 2012; B.A., Fordham University 2008. I
would like to thank my family and friends for their constant support, particularly
my parents, who taught me that divorce and family are not incompatible. I
would also like to thank my editors for their insights throughout the writing and
editing of this Note.
1
See The Editors, Is New York Ready for No-Fault Divorce?, N.Y. TIMES
ROOM FOR DEBATE BLOG (June 15, 2010), http://roomfordebate.blogs.nytimes.
com/2010/06/15/is-new-york-ready-for-no-fault-divorce/ (stating that “New
York was the longtime holdout [on no-fault divorce], since South Dakota passed
its law in 1985”).
2
South Dakota was the second-to-last state to pass a no-fault divorce law in
1985. SL 1985, ch. 207 § 1; See also, The Editors, supra note 1.
3
Hon. Sondra Miller, The Commission’s Process and Recommendations:
Symposium on the Miller Commission on Matrimonial Law, 27
PACE L. REV.
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788 JOURNAL OF LAW AND POLICY
The looming threat of a fault trial can harm the children of divorce
by dragging out proceedings and airing allegations of marital fault,
many of which are untrue.
4
Additionally, scholars and practitioners
criticize the fault requirement for adding unnecessary expense to
the already financially taxing experience of divorce.
5
Though fault
trials are rare,
6
they can last from two days to several weeks.
7
As
supervising judge of the matrimonial division in Nassau County,
Judge Robert A. Ross, said, “[fault trials] are never pleasant.”
8
On August 15, 2010, in response to decades of proposals and
complaints, Governor Patterson signed a three-bill package that
overhauled New York divorce laws.
9
The package places New
York’s divorce laws on equal footing with that of the forty-nine
other states that do not require fault in order for a couple to
dissolve their marriage.
10
The reform comes twenty-five years
after South Dakota, the most recent state to pass a no-fault divorce
551, 551–53 (2007).
4
Id. “The Commission recognized the need to change the very culture of
the system and to make explicit recommendations to reduce trauma, cost and
delay.” Id.
5
Id.
6
Nassau County Judge Robert A. Ross stated in an interview with
Bloomberg News that he presided over eight to twelve “fault” trials per year.
Carolyn Kolker & Patricia Hurtado, Divorce Easier as New York Law Ends
Need to Lie,
BLOOMBERG NEWS (Aug. 16, 2010), available at
http://www.bloomberg.com/
news/2010-08-16/breaking-up-not-so-hard-to-do-as-new-york-s-divorce-law-
ends-need-to-lie.html. Robert S. Cohen, a divorce lawyer known for
representing famous clients, such as model Christie Brinkley and actor James
Gandolfini, noted that in his thirty years of practice he only “handled four fault
trials.” Id.
7
Id.
8
Id. (quoting Nassau County Judge Robert A. Ross, who stated, in regards
to the “horrible” nature of fault trials: “You may have friends called, girlfriends
and boyfriends called, people who are alleged to be girlfriends and boyfriends . .
. [h]aving to listen to these things can sometimes be an overwhelming
experience”).
9
N.Y. DOM. REL. LAW § 170(7) (McKinney 2010); See also Denise M.
Champagne, Devil’s in the Details of No-Fault Divorce in New York, D
AILY
RECORD, July 14, 2010.
10
Champagne, supra note 9.
GUIDICE - FINAL.DOC 5/9/2011 4:13 PM
New York and Divorce 789
law, did so in 1985.
11
The bill encountered significant setbacks
during its passage through the State Legislature and prior to
gaining the endorsement of Governor Patterson.
12
As Governor
Patterson noted at the signing of the three-bill package, the reform
brings New York divorce laws “into the twenty-first century.”
13
Prior to the passage of this law,
14
divorce in New York was a
long and contentious process that could not be achieved
unilaterally.
15
The closest that parties could get to a “no-fault”
option was to mutually agree to a divorce, submit to a “trial”
separation, and then convert that separation into a divorce after one
year of living apart.
16
If a couple could not mutually agree to a
divorce, then they would have to seek a divorce on fault-based
grounds.
17
Such “fault” options included adultery, cruel and
inhuman treatment, abandonment, and constructive
11
Cynthia Lee Starnes, Mothers as Suckers: Pity, Partnership, and Divorce
Discourse, 90
IOWA L. REV. 1513, 1538 (2005) (“In 1985, South Dakota became
the last state to adopt a no-fault divorce ground.”).
12
Id. (noting that the current bill’s passage through the Senate in June 2010
marked the best chance “in more than two decades” of passing a no-fault
divorce provision).
13
Press Release, New York State Office of The Governor, Governor
Patterson Acts on 137 Bills; Vetoes 34 Bills Worth More Than $22.9 Million in
Additional Spending (Aug. 15, 2010), available at http://readme.readmedia.
com/Governor-Paterson-Acts-on-137-Bills-Vetoes-34-Bills-Worth-More-Than-
22-9-Million -in-Additional-Spending/1694112.
14
N.Y. DOM. REL. § 170(7) (McKinney 2010) (amending New York’s
domestic relations law to add subsection 7 allowing for divorce on the grounds
of irretrievable breakdown of marital relationship).
15
Section 170(5) of New York’s Domestic Relations Law requires a couple
to live apart pursuant to a separation judgment or decree for a period of one or
more years and show “satisfactory proof” that they have substantially performed
the terms and conditions of the judgment or decree before they will be granted a
divorce. N.Y.
DOM. REL. § 170(5) (McKinney 2010). Similarly, section 170(6)
requires a husband and wife to live apart for a period of at least one year
pursuant to a written agreement of separation before they will be issued a
divorce. Id. See also Joel Stashenko, No Fault Companion Bill on Maintenance
Raises New Concerns, 244 N.Y.
L.J. 1 (2010).
16
N.Y. DOM. REL. §§ 170(5)–(6) (McKinney 2010).
17
Id.
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790 JOURNAL OF LAW AND POLICY
abandonment.
18
This route typically involved extended and costly
litigation, at the end of which a divorce was not even guaranteed.
19
At other times, couples and their attorneys would resort to outright
perjury in order to establish the requisite “fault” necessary for a
divorce.
20
Under the new divorce law, divorce can be granted to an
unhappy spouse who declares under oath that his or her marriage
has been “irretrievably” broken for at least six months.
21
Other
issues related to the divorce, such as child custody and distribution
of property, must be resolved by the parties or determined by the
court before a divorce will officially be granted.
22
The State Legislature also passed two divorce finance reforms
that will affect post-divorce maintenance awards.
23
The
amendments to sections 237(a), 237(b), and 238 provide that the
spouse with the greater economic worth will pay for attorney’s
fees, expert fees, and any additional costs, disbursements, or
18
Id.
19
Joel Stashenko, No Fault Divorce Signed Into Law, 12 N.Y. FAM. L.
MONTHLY # (2010) (New York “[j]udges have frequently been forced to reject
petitions for divorce”).
20
Champagne, supra note 9 (“[I]ndividuals have been known to fabricate
allegations in order to establish grounds”); In 1934, the New York Mirror
created a sensation with its series, “I Was the Unknown Blonde in 100 New
York Divorces!” (discussing the way in which New York lawyers worked
around the adultery-only divorce grounds prior to divorce reform in 1960). J.
Herbie DiFonzo & Ruth C. Stern, Addicted to Fault: Why Divorce Reform Has
Lagged in New York, 27 P
ACE L. REV. 559, 571–72 (2007).
21
2010 N.Y. Sess. Laws, ch. 384 (McKinney 2010), adding section 170(7)
to New York Domestic Relations Law which reads as follows:
The relationship between husband and wife has broken down
irretrievably for a period of at least six months, provided that one party
has so stated under oath. No judgment of divorce shall be granted under
this subdivision unless and until the economic issues of equitable
distribution of marital property, the payment or waiver of spousal
support, the payment of child support, the payment of counsel and
expert’s fees and expenses as well as the custody and visitation with the
infant children of the marriage have been resolved by the parties, or
determined by the Court and incorporated into the judgment of divorce.
22
Id.
23
N.Y. DOM. REL. LAW §§ 237(a)–(b), 238 (McKinney 2010).
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New York and Divorce 791
expenses.
24
Further, the amendments to Domestic Relations Law
section 236 will govern the provision of temporary maintenance in
matrimonial actions.
25
The new amendments took effect on
October 12, 2010.
26
The passage of a no-fault cause of action for divorce and a new
maintenance formula raise the specter of a judicial process in
which fault does not play a role. However, couples divorce for
independent and varied reasons—no two divorces are alike.
27
If
divorce law is to “do justice,”
28
fault should matter in the division
of assets, even where it is properly excluded from the reasons for
divorce. By allowing fault to be taken into account when
determining maintenance awards, New York courts would
maintain the requisite authority to provide equitable post-divorce
settlements regardless of which party desired the divorce.
Further, divorce cannot be granted under the new law until
issues such as equitable distribution, spousal maintenance, child
support, counsel and expert fees, child custody, and visitation are
either resolved by the parties or determined by the court.
29
Thus, in
order to protect themselves from the “one-size fits all” divorce that
can occur in no-fault jurisdictions, New Yorkers should enter into
premarital agreements.
30
In an age where divorce proceedings have
24
Id.
25
“Temporary maintenance” is the term used for the monetary support
provided during the interim of a matrimonial action. N.Y.
DOM. REL. LAW § 236
(McKinney 2010).
26
2010 N.Y. Sess. Laws, ch. 384 (McKinney 2010). In order to study the
effects of the new temporary maintenance formula, a Commission was set up
and will submit its findings to the state legislature sometime in mid-2011.
Stashenko, supra note 15 (“The Law Revision Commission will study the
setting of maintenance levels statewide to determine if courts are failing to take
into account financial factors that could unfairly disadvantage one spouse or
another.”).
27
Robin Fretwell Wilson, Often, There is Fault, N.Y. TIMES ROOM FOR
DEBATE BLOG (June 15, 2010), http://roomfordebate.blogs.nytimes.com/2010/
06/15/is-new-york-ready-for-no-fault-divorce.
28
Id.
29
N.Y. DOM. REL. § 170(7).
30
Or, post-marital agreements, which are entered into by couples that are
already married and wish to negotiate the terms of their divorce. 41 A
M. JUR. 2D
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792 JOURNAL OF LAW AND POLICY
become more and more streamlined, premarital agreements offer
New Yorkers the most equitable solution to an increasingly
litigation-less area of the law.
Part I of this Note will explore the historical development of
divorce law by examining the traditional fault based divorce law
and the subsequent movement away from the law in other
jurisdictions. Part II will discuss the fault-based system under New
York’s former Domestic Relations Law and address the
inadequacies of the fault based divorce system. Part III will
examine the subsequent changes that will occur as a result of New
York’s divorce reform bill, including no-fault divorce and divorce
finance changes. This section will explore the implications of no-
fault divorce laws on maintenance,
31
including how the new
formula provides for calculating temporary maintenance awards
under New York’s new no-fault divorce reform package, and how
that will affect the parties to divorce.
32
Additionally, this section
will address the possible financial effect New York’s divorce laws
will have on couples seeking to divorce. Part IV will address
potential inadequacies in the new divorce law, and recommend
both judicial prescriptions and precautionary measures that should
be taken by spouses prior to entering into marriage. Ultimately,
this Note maintains that fault should play a role in maintenance
proceedings and the distribution of marital property. Following the
example of many other states,
33
New York should allow marital
misconduct to be taken into account in determining maintenance
awards and the division of property.
I. H
ISTORICAL DEVELOPMENT OF DIVORCE LAW
Divorce law developed rapidly throughout the late nineteenth
and early twentieth centuries. Viewed in much the same light as
Husband and Wife § 107.
31
N.Y. DOM. REL. LAW § 236 (b)(1) (McKinney 2010).
32
N.Y. DOM. REL. LAW § 236 (McKinney 2010) (Amendments to section
236 of New York Domestic Relations Law were enacted, governing the
provision of temporary maintenance in matrimonial actions).
33
See generally A.B.A., Alimony/Spousal Support Factors, 42 FAM. L.Q.
757 (2009).
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New York and Divorce 793
tort actions, divorce was seen as a remedy for those spouses who
had been wronged by their partner.
34
Thus, the fault-based divorce
system was the dominant scheme in most jurisdictions until the
mid-twentieth century.
35
However, as social values and mores
changed, strict fault-based divorce regimes were replaced by
unilateral, no-fault systems.
36
By 1985, almost every jurisdiction in
the United States had a unilateral divorce system in place. The
singular exception to this overwhelming support for unilateral
divorce was New York.
A. Traditional Fault Based Divorce
Divorce was not recognized under English common law until
the mid-nineteenth century, when divorce jurisdiction was
removed from the ecclesiastical courts to the civil court system.
37
At that time, divorces were only granted in cases of adultery.
38
By
the late nineteenth century, the laws regulating marriage and
divorce in the United States varied drastically among the states.
39
Though the laws differed, each jurisdiction recognized divorce or
judicial separation on limited grounds—all of which involved
some degree of fault.
40
Although the most frequently used grounds
for divorce were “[a]dultery, extreme cruelty, or desertion,” many
states permitted “insanity, conviction of a crime, habitual
drunkenness and drug addiction” to be used as grounds for
divorce.
41
34
Michelle L. Evans, Wrongs Committed During a Marriage: The Child
that No Area of the Law Wants to Adopt, 66 W
ASH. & LEE L. REV. 465, 473–73
(2009).
35
JOHN DE WITT GREGORY ET AL., UNDERSTANDING FAMILY LAW 237 (3d
ed. 2005).
36
See generally NELSON MANFRED BLAKE, THE ROAD TO RENO: A
HISTORY OF DIVORCE IN THE UNITED STATES (Greenwood Press 1977) (1962).
37
See LYNN CAROL HALEM, DIVORCE REFORM: CHANGING LEGAL AND
SOCIAL PERSPECTIVES 12–17 (1980).
38
Evans, supra note 34, at 472.
39
BLAKE, supra note 36, 116–29.
40
Id. (noting the differences in approaches to divorce that were adopted).
41
GREGORY ET AL., supra note 35, at 237.
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794 JOURNAL OF LAW AND POLICY
Under the fault-based system, the primary concern was “the
strong public interest in preserving marriage.”
42
The system was
founded on the belief that requiring proof of fault would limit
access to divorce and further the state’s interest in preserving
marriages.
43
Divorce was “conceived as a remedy for the innocent
against the guilty.”
44
This strict notion of “wrong-versus-right” led
many courts to refuse to grant divorce in cases where both parties
were guilty of marital misconduct.
45
The limited availability of divorce began to wane in the second
half of the twentieth century as jurisdictions across the country
began to authorize divorce without regard to fault.
46
Nevertheless, New York’s general divorce law, which solely
allowed for divorce on the ground of adultery, remained “immune
to revision.”
47
Attempts to reform New York laws by broadening
the grounds for divorce were continuously defeated.
48
However, by
1930 the New York Legislature had successfully defined five
grounds for annulment: infancy,
49
bigamy, lunacy and idiocy, force
or fraud, and physical incapacity (impotence).
50
B. The Emergence of No-Fault Divorce
The limited availability of divorce left many couples trapped in
42
Jana B. Singer, The Privatization of Family Law, 1992 WIS. L. REV.
1442, 1471 (1992).
43
Evans, supra note 34, at 473.
44
Brewies v. Brewies, 178 S.W.2d 84, 85 (Tenn. Ct. App. 1944) (holding
that a divorce ordinarily will not be granted where both parties are equally at
fault).
45
The result that occurs is ironic: when both parties have a ground for a
divorce, neither has a right to divorce. Id. See generally J.W. Bunkley, The
Doctrine of Recrimination in Divorce Law, 20 M
ISS. L.J. 327 (1948). This was
known as the doctrine of recrimination. Id.
46
GREGORY ET AL., supra note 35, at 237 (discussing the collapse of
conventional divorce law and the development of no-fault divorce laws).
47
DiFonzo & Stern, supra note 20, at 564.
48
BLAKE, supra note 36, at 201–04. Between 1900 and 1933, over fifteen
bills were sponsored and rejected. Id. at 201.
49
Being under the age of consent.
50
BLAKE, supra note 36, at 66–67.
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New York and Divorce 795
irretrievably broken marriages.
51
Over time, the fault-based
divorce system led to the widespread corruption of the family law
system, which legislatures and judges across the nation had come
to ignore.
52
Unhappy couples resorted to collusion—fabricating
evidence of marital misconduct in order to establish the requisite
ground upon which divorce could be granted.
53
In a notorious
example, Dorothy Jarvis was hired in over one-hundred divorce
cases to play the role of “the other woman.”
54
Jarvis staged
adulterous hotel rendezvous with New York husbands.
55
A
photographer would catch the “adulterous couple,” thus providing
the necessary evidence for the unhappily married New Yorkers to
obtain a divorce.
56
Eventually, the widespread practice of “collusion and
perjury”
57
by couples wishing to divorce challenged the legitimacy
of the family law system.
58
In response, California enacted the
country’s first no-fault divorce law.
59
Signed by Governor Ronald
Reagan in 1969,
60
this revolutionary legislation inspired similar
51
Sullivan v. Sullivan, 689 N.Y.S.2d 378, 382 (Sup. Ct. Suffolk Cnty.
1999) (stating that a divorce will not be granted on the grounds that the marital
relationship is irretrievably broken and lost).
52
See GREGORY ET AL., supra note 35, at 236–38.
53
Lawrence M. Friedman, A Dead Language: Divorce Law and Practice
Before No-Fault, 86 V
A. L. REV. 1497, 1512–13 (2000) (explaining the concept
of collusion and its widespread use in the practice of divorce law prior to the
introduction of no-fault rules).
54
BLAKE, supra note 36, at 193.
55
Id.
56
Friedman, supra note 53, at 1512–13.
57
Id. at 1506–07. In the early twentieth century a Massachusetts judge
claimed, “[t]here [was] probably no tribunal in the country in which perjury was
more rife than in the Divorce Court.” H
ENRY EDWIN FENN, THIRTY-FIVE YEARS
IN THE
DIVORCE COURT 139 (1911).
58
Ira Mark Ellman, Divorce in the United States, in CROSS CURRENTS:
FAMILY LAW AND POLICY IN THE US AND ENGLAND 341, 341 (Sanford N. Katz,
et al. eds., 2000) (“The entire package of [fault-based divorce] rules encouraged
the very sham that the collusion doctrine ineffectually sought to suppress.”).
59
See Family Law Act of 1969, ch. 1608, § 4506, 1969 Cal. Stat. 3314,
3324 (current version at Cal. Fam. Code § 2310 (West 2011)).
60
See generally ASSEMB. COMM. ON JUDICIARY, DIVORCE REFORM IN
CALIFORNIA: FROM FAULT TO NO-FAULT…AND BACK AGAIN? (Nov. 6, 1997),
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796 JOURNAL OF LAW AND POLICY
changes across the country as the no-fault approach grew in
popularity.
61
By the mid-1980s, all states had some form of a no-fault
provision integrated into their divorce law.
62
Most states enacted
no-fault divorce laws that cited “irreconcilable differences” or
“irretrievable breakdown” as the basis for marital dissolution.
63
Neutral grounds for dissolving marriage reduced the moral stigma
associated with divorce.
64
In addition, a large majority of no-fault
regimes began to permit unilateral divorce.
65
Social scientists studying family relationships in the middle of
the twentieth century suggested that “marriages broke up in [the]
context of conflicts in attitude, personality, or other difficulty on
both sides, rather than as a result of fault by one spouse and
innocence by the other.”
66
Advocates of no-fault divorce relied on
this proposition to bolster the argument that traditional grounds for
divorce (i.e., adultery, desertion, etc.) were symptoms of a
deteriorating marriage rather than the causes.
67
It was argued that
available at http://www.library.co.gov/crb/98/04/currentstate.pdf. The 1969
statute read: “A Court may decree a dissolution of the marriage or legal
separation on either of the following grounds, which shall be pleaded generally:
(1) [i]rreconcilable differences, which have caused the irremediable breakdown
of marriage[;] (2) [i]ncurable insanity.” 1969 Cal. Stat. 1608 (current version at
Cal. Fam. Code § 2310 (West 2011)).
61
GREGORY ET AL., supra note 35, at 237 (describing California’s divorce
reform law as the forefront of the “divorce revolution”).
62
Either as the sole basis for divorce or as an alternative to the traditional
fault based system. See Evans, supra note 34, at 474. See also Scheu v. Vargas,
778 N.Y.S.2d 663, 663 (Sup. Ct. 2004) (stating that, in New York, no-fault
divorce applies only where there is a previous decree of separation or a written
separation agreement, as required by the Domestic Relations Law provision
listing grounds for divorce; otherwise, a divorce may be granted only if fault is
established pursuant to one or more of the grounds set forth in the provision).
63
Evans, supra note 34, at 474.
64
Id.
65
This meant that one spouse could terminate the marriage without the
consent of the other. Michael Grossberg, How to Give the Present a Past?
Family Law in the United States 1950-2000, in C
ROSS CURRENTS, supra note
58, at 3, 7.
66
Id. at 18.
67
Id. at 17–18.
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New York and Divorce 797
parties should not be required to assert such symptoms in order to
finalize a divorce when the causes of the breakdown were often
multifarious and equally distributed between the parties.
68
In the wake of California’s “legal and cultural
transformation,”
69
no-fault divorce reform quickly became a
prevalent topic in family law discourse throughout the country.
70
In
1969, the same year as California’s groundbreaking divorce
reform, the Federal Uniform Marriage and Divorce Act
(“UMDA”) was approved,
71
which called for irretrievable
breakdown of the marriage to be the sole ground of divorce.
72
Federal encouragement of no-fault divorce practices along with the
independent adoption of no-fault divorce regimes among the states
highlights the (almost) universal belief that the fault requirement to
the dissolution of marriage was outdated and unnecessary.
However, despite the fact that every jurisdiction in the country
would adopt unilateral divorce systems throughout the 1970s and
1980s, it would take New York nearly a half-century to follow
suit.
73
C. Why Change Took So Long In New York
In the years leading up to the present overhaul of its divorce
laws, New York remained unable to advance past legislative
wrangling into legislative action.
74
New York’s inaction can be
attributed in part to the influence of the Catholic Church and to the
68
Id.
69
James Herbie DiFonzo, Customized Marriages, 75 IND. L.J. 875, 907
(2000).
70
See ASSEMB. COMM. ON JUDICIARY, supra note 60, at 132 (1997)
(describing California’s passage of a no-fault option as the launch of a “legal
revolution”).
71
UNIF. MARRIAGE & DIVORCE ACT § 302 (1970). Although only eight
states have adopted the UMDA—Arizona, Colorado, Illinois, Kentucky,
Minnesota, Missouri, Montana, and Washington, “the act has greatly influenced
the terms of divorce reform for many states.” DiFonzo & Stern, supra note 20,
at n.223.
72
UNIF. MARRIAGE & DIVORCE ACT § 302 (1970).
73
THE EDITORS, supra note 1.
74
DiFonzo & Stern, supra note 20, at 567.
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798 JOURNAL OF LAW AND POLICY
many dedicated women’s organizations in the legislature.
75
Such
forces underlie the main reason for New York’s delayed progress
in divorce reform, which was simply that it was decades behind the
rest of the country.
76
New York deferred divorce reform legislation several times
between 1900 and 1960.
77
Scholars have suggested that the
“stubborn adhesion” of New York’s lawmakers to a single ground
for divorce reflected “not so much a stern sense of duty as an
inability to give the problem of marital law more than fitful
attention.”
78
Distracted by social and religious forces, decades of
World Wars, and economic depression, New York legislators stood
stagnant on the issue of divorce reform.
79
By the 1950s, New York had the “lowest recorded divorce rate
in the country.”
80
However, the frequency of annulments,
81
migratory divorce,
82
separations, and desertions combined to
increase the state’s total marital disruption far beyond the national
average.
83
In the 1960s, “this dichotomy between ‘law-as-statute
75
See generally id.
76
See generally id.
77
BLAKE, supra note 36, at 64–79.
78
Id. at 64.
79
DiFonzo & Stern, supra note 20, at 567. Between the years 1900 and
1933, fifteen different legislators sponsored bills to modernize New York’s
divorce law by adding grounds such as cruelty and desertion. B
LAKE, supra note
36, at 201. However, each bill was “buried in committee.” Id.
80
DiFonzo & Stern, supra note 20, at 576.
81
New York had the nation’s highest annulment rate, comprising
approximately one-third of all annulments in the United States. H
ERBERT JACOB,
SILENT REVOLUTION: THE TRANSFORMATION OF DIVORCE LAW IN THE UNITED
STATES 35 (1988).
82
The practice of leaving one’s state or country in order to take advantage
of more lenient divorce laws and secure a divorce. B
LAKE, supra note 36, at 1–
4, 152–59.
83
Unhappy New Yorkers were willing, in significant numbers, to leave
home to get divorced. DiFonzo & Stern, supra note 20, at 576. By 1922,
scholars noted that nearly one-third of all New York divorces had been obtained
out of state. Id. Because of Constitutional full-faith and credit requirements,
New York Courts accepted these out of state divorces so long as both parties
were present. Id. at 573. And, for those New Yorkers who could not afford to
leave the state in order to end their marriages, annulments provided another
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New York and Divorce 799
and law-in-action’”
84
eventually proved to be too much for the
New York Legislature.
85
New York’s first major divorce reform occurred as a result of a
1961 report by the Joint Legislative Committee on Matrimonial
and Family Laws.
86
Known as the “Wilson Committee,”
87
the
group discovered what Family Law judges and practitioners had
long known; the State’s formal divorce law had “spawned a set of
practices inconsistent with any notions of sound public policy.”
88
The Committee realized that by framing the need for divorce
reform in such a way as to stress the “public policy need for
consistency between the law in practice and the law as written,” it
could successfully evade the moral debate of divorce itself.
89
The subsequent divorce reforms—New York’s first—occurred
in 1966.
90
The new law provided for divorce on the grounds of
adultery, cruel and inhuman treatment, abandonment for two or
more years, confinement in prison for three or more years, or
living apart for a period of two years or more pursuant to an
route to dissolving their unions. In New York, annulments accounted for 25% of
marital dissolutions during World War II and nearly 50% after 1950. Id. at 574.
In addition to traveling in order to get a divorce, or resorting to annulments,
other couples who wanted to dissolve their marriages simply resorted to
deserting their partners. Id. at 575. In 1940, the percentage of white married
women (excluding widows) who did not live with their husbands was
approximately 30% greater in New York than the rest of the country. Id.
84
DiFonzo & Stern, supra note 20, at 576.
85
Id.
86
JACOB, supra note 81, at 37.
87
Id. at 35–37.
88
DiFonzo & Stern, supra note 20, at 578.
89
Again and again, the Committee was made aware of how ‘the formal
law had spawned a set of practices inconsistent with any notions of
sound public policy.’ Viewed in this way, divorce became something
other than grist for the conservative-liberal debate. Because the issue
was framed as ‘disjunction between law-on-the-books and law in
action,’ divorce reform could be presented as a much-needed
‘procedural’ change.
Id. See also, B
LAKE, supra note 36, at 212.
90
Id. at 577.
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800 JOURNAL OF LAW AND POLICY
agreement or a judicial separation decree.
91
Although limited in
reach, New York had passed its first no-fault divorce law.
Further, when the New York Court of Appeals upheld the
legality and retroactivity of conversion divorce in Gleason v.
Gleason in 1970, it became clear that New York was moving in a
positive direction insofar as its divorce laws were concerned.
92
Notably, the Court’s reasoning explicitly rejected any state interest
in compelling couples to remain together in marriages that were
clearly non-operational.
93
The Court concluded that the purpose of
the “no-fault provision” allowing for conversion divorce was to
remove issues of misconduct from the Court’s consideration.
94
Arguably, the Gleason Court extended support to no-fault divorce
based on “moral and social grounds.”
95
No-fault divorce in New
York was on its way.
II. N
EW YORK’S FAULT BASED DIVORCE SYSTEM
New York’s fault-based divorce system was rife with issues
that often led to bitter and divisive battles between couples wishing
to end their marriages.
96
Often, a couple’s reasons for divorcing
did not neatly fall into one of the statute’s specific grounds for
divorce. Additionally, judicially prescribed conditions for each
ground of divorce often made the process more complex and
91
HALEM, supra note 37, at 258–59. Judicial separation decrees require a
showing of marital fault. Id. Alternatively, parties may separate pursuant to a
written agreement, filed with the Clerk of the Court, without a finding of fault.
Id. In judicial separations, either the innocent party or the party against whom a
judgment has been made may apply for conversion. Id.
92
See Gleason v. Gleason, 256 N.E.2d 513, 516 (N.Y. 1970) (holding that
the action for a conversion divorce could be maintained even by the person who
was found at fault in the original separation action). “Conversion divorce”
occurs when two parties separate pursuant to a separation agreement or decree
by the court. The terms of the agreement or decree must be abided by and the
parties must live separately for a designated period of time—at which time the
separation may be “converted” into a divorce by the Supreme Court. See id.
93
See id.
94
Id.
95
HALEM, supra note 37, at 266.
96
See Miller, supra note 3, at 551.
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resulted in uncertain outcomes. Further, while the financial
stability of the divorcing parties was often a motivating factor
behind courts’ refusals to grant divorce petitions, such
considerations frequently resulted in inequitable decisions.
Ultimately, New York’s defunct divorce finance laws were a major
catalyst for the current overhaul of the state’s domestic relations
laws.
A. Marital Fault
The fault-based divorce system subsisted in New York until the
amendment of subsection seven to Domestic Relations Law section
170 in October of 2010. Under the prior New York Domestic
Relations Law section 170, an action for divorce could only be
granted if the couple could establish one of the six grounds for
divorce established in 1966.
97
While only 23 percent of divorces in
2009 were contested in New York, there was still a possibility of a
contested divorce and the ensuing fault trial, with long, drawn out
witness testimonies on the alleged wrongdoing of the parties and
painful attacks on each party’s credibility.
98
The following cases illustrate the difficulty of requiring fault in
order to divorce and demonstrate how courts often refused to grant
divorces. While it appeared that New York courts strictly enforced
fault criteria, the underlying financial concerns at play in divorce
proceedings were often the central consideration in courts’
97
Cruel and inhuman treatment, abandonment (also constructive
abandonment), imprisonment of one of the parties for a period of three or more
years, adultery, and living separate and apart pursuant to a separation judgment
or agreement.
N.Y. DOM. REL. § 170 (McKinney 2010). According to the New
York State Department of Health, the most frequently cited grounds for divorce
in 2008 (the most recent year for which statistics are available) were
abandonment and cruel and inhuman treatment, respectively. D
EP’T. OF HEALTH,
INFO. FOR A HEALTHY N.Y.: TABLE 50: DIVORCES BY COUNTY OF DECREE AND
LEGAL GROUNDS FOR NEW YORK STATE - 2008, available at http://www.
health.state.ny.us/nysdoh/vital_statistics/2008/table50.htm. Out of 52,619
divorces filed for in 2008, abandonment accounted for over 36,000 of the
grounds with cruelty a distant second at just over 10,000. Id.
98
Kolker & Hurtado, supra note 6.
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802 JOURNAL OF LAW AND POLICY
reasoning.
99
In Hessen v. Hessen—the first case to highlight the
various considerations evaluated by courts when determining
whether conduct constitutes cruel and inhuman treatment sufficient
to grant a divorce—the court held that physical or mental abuse
warrants a divorce only if the conduct makes cohabitation improper
or unsafe.
100
In Hessen, the Court of Appeals noted that the “cruel
and inhuman treatment” ground for divorce could not be satisfied
by the mere breakdown of the marital relationship, but would
require evidentiary proof of cruelty.
101
What is particularly
noteworthy in Hessen is the Court’s focus on the respective ages of
the husband and wife seeking divorce, and on the duration of the
marriage.
102
The Court denied the Hessens a divorce,
103
stating that
the appearance of misconduct, “which in a matured marriage might
fail to justify a finding of substantial misconduct, may justify or
even compel an inference of substantial misconduct in a newer
marriage.”
104
The case law that follows Hessen further
demonstrates the absurdity of New York’s divorce laws.
The strict evidentiary standard required to end a marriage of
long duration is illustrated by Palin v. Palin.
105
Although the wife
in Palin proved that she had been verbally abused, threatened, and
physically attacked by her husband, the court held that this abuse
was insufficient for a finding of cruel and inhuman treatment.
106
The court noted that the treatment did not suggest anything more
than “unpleasantness.”
107
In fact, New York courts have held that
99
See, e.g., Hessen v. Hessen, 308 N.E.2d 891 (N.Y. 1974).
100
Id. (emphasis added).
101
Id.
102
Id. at 895 (stating that for marriages of long duration it is proper to
apply the admonition “for better or worse”).
103
Id.
104
Id. at 893–95. The Court took into account that an older couple may
experience the “deleterious effects of old age on the physical and mental
disposition,” which may create problems within a marriage, and that changes in
family situations like the departures of grown children from the household or
family tragedy, may create difficulties. Id.
105
Palin v. Palin, 624 N.Y.S.2d 630 (N.Y. App. Div. 1995).
106
Id.
107
Id. (granting the wife a divorce based on adultery but rejecting the
divorce on grounds of cruel and inhuman treatment).
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New York and Divorce 803
isolated acts of violence are not sufficient for a divorce based on
cruel and inhuman treatment.
108
In a well-publicized case that occurred in 2010,
109
a Nassau
County court denied a husband’s divorce request on the grounds of
cruel and inhuman treatment despite the fact that his wife had
threatened him with a samurai sword.
110
Evidence during the
lengthy fault trial showed that the wife had abused the husband for
years.
111
The constant abuse resulted in the husband’s sleep
deprivation because he feared “sneak attacks” from his wife.
112
The wife once brought the sharp tip of a samurai sword “within
inches” of her husband’s face; this extreme event precipitated the
husband’s request for a divorce.
113
However, noting that the
marriage was one of long duration, the court denied the husband a
divorce.
114
The court’s opinion also noted that the husband failed
to testify that the alleged incidents “so endangered his physical or
mental well-being as to render it unsafe or improper for him to
cohabit with his wife.”
115
108
See, e.g., Wenderlich v. Wenderlich, 311 N.Y.S.2d 797 (N.Y. App. Div.
1970) (finding “proof . . . that defendant struck the plaintiff the morning of
September 1, 1967 . . . insufficient to establish the cause of action”); Concetto v.
Concetto, 377 N.Y.S.2d 164 (N.Y. App. Div. 1975) (holding that “[t]he proof,
however, failed to establish that the name-calling and the two isolated acts of
alleged violence, to which the husband testified, so endangered his physical or
mental well-being as to render it unsafe or improper for him to cohabit with his
wife”); Rabinowitz v. Rabinowitz, 321 N.Y.S.2d 934 (N.Y. App. Div. 1971)
(explaining that “[e]vidence showing that marriage was marked by lack of
harmony, frequent quarrels and occasional strife, all adding up to degree of
incompatibility, still fell far short of statutory requirements”).
109
Vesselin Mitev, Sword Attack Claim Does Not Cut It; ‘Abandonment’
Wins Divorce, L
AW.COM (April 8, 2010), http://www.law.com/jsp/article.
jsp?id=1202447747480&slreturn=1&hbxlogin=1.
110
S.K. v. I.K., No. 203247-2008, 2010 WL 1371943, at *9 (N.Y. Sup. Ct.
Mar. 29, 2010).
111
Id. at *5–6.
112
Id. at *3.
113
Id. at *5. During the lengthy “fault” trial, the couple’s daughter testified
that the tip of the sword was “extremely sharp” and, had she not intervened, her
mother could have seriously injured or killed her father. Id.
114
Id. at *9.
115
Id. (citing Hessen v. Hessen, 308 N.E.2d 891 (N.Y. 1974)).
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804 JOURNAL OF LAW AND POLICY
These cases illustrate the difficulty of proving cruel and
inhuman treatment as grounds for a divorce in New York.
Although the average divorce case lacks the drama of a samurai
sword, many spouses suffered physical or emotional abuse that did
not rise to the court-defined level of cruel and inhuman treatment
under New York law.
116
Asserting other grounds for divorce was
often just as complicated and ineffective.
New York courts made equally outrageous holdings under the
awning of constructive abandonment grounds for divorce. In order
for a spouse to assert constructive abandonment,
117
the refusal to
engage in marital relations must have persisted for at least one year
prior to the commencement of the action.
118
However, in Hammer
v. Hammer, the Court asserted that the failure to file for a divorce
on the grounds of constructive abandonment after an extended
period of time could bar a spouse from claiming constructive
116
See, e.g., Gross v. Gross, 836 N.Y.S.2d 166, 168–69 (N.Y. App. Ct.
2007) (holding that reprehensible and highly offensive behavior does not
necessarily establish cruel and inhuman treatment ground for divorce where wife
testified that her husband had forced himself on her sexually, trapped her inside
the marital bedroom on occasion, and threw her against the walls of their home);
E.D. v. M.D., 801 N.Y.S.2d 233, 234 (N.Y. Sup. Ct. 2005) (holding that the
evidence of physical contact between the parties was isolated and minimal and
not grounds for cruel and inhuman treatment where husband was frequently
argumentative and struck the wife on occasion but where the wife had not
sought medical treatment for any injuries); S.C. v. A.C., 798 N.Y.S.2d 348, 352
(N.Y. Sup. Ct. 2004) (holding that, with regard to the incidents of physical
contact between the parties, none were more than minor and incidental to the
behavior complained of and were insufficient for grounds of cruel and inhuman
treatment).
117
Constructive abandonment is one of the most popular grounds for
divorce. See D
EP’T. OF HEALTH, supra note 97 (listing the number of divorces in
New York in 2008). A refusal or failure to engage in marital relations, to rise to
the level of constructive abandonment, must be unjustified, willful, and
continued, despite repeated requests from the other spouse for resumption of
cohabitation. See Silver v. Silver, 677 N.Y.S.2d 593, 594 (N.Y. App. Ct. 1998).
118
See, e.g., Levy v. Levy, 385 N.Y.S.2d 314 (N.Y. App. Div. 1976)
(finding the husband’s charge of constructive abandonment insufficient based on
timeliness); DeAngelis v. DeAngelis, 388 N.Y.S.2d 744 (N.Y. App. Div. 1976)
(rejecting claim “[w]here wife’s refusal to have sexual relations with husband
existed for much less than one year prior to institution of divorce action”).
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New York and Divorce 805
abandonment altogether.
119
The Hammer Court held that where a
husband had not threatened to terminate his sexless marriage, but
allowed it to continue for ten years, he impliedly consented to the
status of the relationship and could not claim constructive
abandonment as grounds for divorce.
120
Although Hammer involved a case where the couple had not
engaged in intimate relations for ten years, New York courts have
rejected constructive abandonment claims involving much shorter
periods.
121
In Breckinridge, the couple mutually declared that their
marriage had been sexless for three years,
122
and each asserted that
the lack of marital relations was due to the other’s lack of
interest.
123
The court held that because both parties implicitly
agreed to eliminate marital intimacy, neither could be at fault and
no divorce could be granted.
124
By ignoring any multitude of reasonable causes for a couple to
remain together despite their lack of marital relations, New York
courts arguably encouraged couples to surrender their marriages
early. Couples with legitimate reasons for staying together such as
raising children or financial inability to separate could lose the
ability to divorce on the grounds of constructive abandonment at a
later date. These cases are merely a small sample of New York
divorce cases. The inconsistent, unpredictable nature of the
decisions clearly illustrates the necessity of a unilateral and
“faultless” ground for divorce.
B. Alimony
The effect that New York’s alimony laws had on individuals in
119
Hammer v. Hammer, 342 N.Y.S.2d 9, 10 (N.Y. App. Div. 1973), aff’d,
34 N.Y.2d 545 (1974).
120
Id; see Bunce v. Bunce, 426 N.Y.S.2d 105 (N.Y. App. Div. 1980)
(constructive abandonment claim based on refusal to engage in marital relations
for fifteen years).
121
See, e.g., Breckinridge v. Breckinridge, 478 N.Y.S.2d 136, 138 (N.Y.
App. Div. 1984).
122
Id. at 137.
123
Id.
124
Id. at 138.
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806 JOURNAL OF LAW AND POLICY
the wake of divorce—particularly women—was a significant
factor behind the Court of Appeals’ holding in Hessen and other
cases like it.
125
The old Domestic Relations Law deprived alimony
and occupancy of the marital home to a spouse against whom a
divorce had been granted.
126
With this in mind, New York courts
decided that special thought should be given to the deprivation of
support rights that would follow a fault determination against
dependent spouses.
127
For example, because the husband in Hessen
was the one who filed for divorce and the one who asserted cruelty
against his wife, the Court felt that it would be inappropriate to
deprive her—a dependent older woman—of support by granting
the husband a divorce absent truly grievous misconduct.
128
The
consideration for the financial welfare of spouses post-divorce
sheds a more reasonable light on the Court’s holding. In fact, the
concern for the financial effect of divorce on spouses was common
for most of the grounds for divorce in New York, as the judiciary
did not want individuals to become wards of the state.
129
Over time, it became clear that dependent wives seeking
divorce on the grounds of cruel and inhuman treatment were held
to a lower standard of proof because of the inapplicability of the
alimony preclusion.
130
Although this inequity made sense given the
125
Hessen v. Hessen, 308 N.E.2d 891, 895 (N.Y. 1974). At the time Hessen
was decided, alimony was only awarded to wives. Brooke Grossman, Note, The
Evolution of Equitable Distribution in New York, 62 N.Y.U. A
NN. SURV. AM. L.
607, 611 (2007).
126
Hessen, 308 N.E. 2d at 410.
127
Such as the wife in Hessen. Id. at 412 (noting that because of the effect
that fault finding has on the opportunity to obtain support and other post-divorce
relief, courts should use broad discretion in considering the grant of a divorce
based on cruel and inhuman treatment).
128
Id. (holding that the economic consequences of granting of the divorce
must be treated as an influential factor in determining whether to grant divorce).
129
See Lord v. Lord, 409 N.Y.S.2d 46, 49 (N.Y. 1978) (noting that the
division of assets and alimony would be considered differently if the wife and
children were in danger of becoming wards of the state).
130
See, e.g., Filippi v. Filippi, 384 N.Y.S.2d 1010, 1011 (N.Y. App. Div.
1976) (taking note of the fact that most courts applied a lesser standard of proof
for women seeking divorce on the ground of cruel and inhuman treatment, but
that in the case at bar, the court would strictly apply the Hessen standard where
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New York and Divorce 807
financial issues dependent women faced in the event that their
financially secure husbands should decide to divorce them, the
extreme domestic situations some husbands were incapable of
escaping highlighted the need for reform of New York’s divorce
finance laws.
131
C. Equitable Distribution
One of the primary reasons for arbitrary and inconsistent
divorce holdings was New York’s failure to update divorce finance
law when the state updated its divorce law in 1966.
132
At the time,
New York retained the traditional common law view that legal title
to property was determinative of its ownership upon divorce.
133
Under such a system, the husband, who was typically the
homeowner and breadwinner, left the marriage with a majority of
the property.
134
This inequality in post-divorce assets was typically
remedied by awarding the wife permanent or long-term alimony.
135
the marriage was long in duration).
131
In Johnson v. Johnson, the court rejected a husband’s petition for
divorce on grounds of cruel and inhuman treatment despite the fact that his wife
had been absent from the family home for extended periods and had assaulted
him on at least two occasions. Johnson v. Johnson, 478 N.Y.S.2d 54 (N.Y. App.
Div. 1984) (holding that the wife’s actions did not affect the husband in any
deleterious way). In Denny v. Denny, the court of appeals denied the plaintiff
husband his application for divorce on the grounds of cruel and inhuman
treatment despite his wife’s refusal to move with him to another city when
transferred by his employer, that he felt dominated by her to the point that his
self-confidence was shaken, and that she deprived him of reasonable intimacy.
Denny v. Denny, 409 N.Y.S.2d 443 (N.Y. App. Div. 1978). In its consideration
of the husband’s request for a divorce, the court of appeals took note of the fact
that the wife would be unable to obtain alimony if it granted her husband a
divorce. Id.
132
DiFonzo & Stern, supra note 20, at 588.
133
BRETT R. TURNER, EQUITABLE DISTRIBUTION OF PROPERTY 7 (3d ed.
2005).
134
See Bea A. Smith, The Partnership Theory of Marriage: A Borrowed
Solution Fails, 68 T
EX. L. REV. 689, 697 n.47 (1990) (citing JACOB, supra note
81, at 5).
135
JACOB, supra note 81, at 5. In contrast to “title” states, such as New
York, a smaller number of states adhere to the “community property” method
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808 JOURNAL OF LAW AND POLICY
Thus, in divorce proceedings where fault was asserted against the
wife, courts were wary of granting the husband a divorce for fear
of leaving the wife with no property or earning potential and
without the relief of alimony.
136
New York struggled with the effects of its divorce finance laws
throughout the 1970s, while nearly all other states adopted
equitable distribution laws.
137
Equitable distribution deemed
marriage an economic partnership
138
and aimed to “credit the
unpaid work that the typical non-employed homemaker put into
the partnership.”
139
However, women’s groups and state legislators
in New York feared the excessive discretion granted to judges
under the equitable distribution system, and were concerned that
distributing property equally would only encourage divorce.
140
Proponents of the equitable system eventually prevailed, and New
York adopted an equitable distribution system in 1980.
141
Further, New York’s Domestic Relations Law section 236 was
where all income earned by either spouse or property purchased with those
earnings is collectively termed “marital property. DiFonzo & Stern, supra note
20, at 585. Eight states—Arizona, California, Idaho, Louisiana, New Mexico,
Nevada, Texas, and Washington—follow this “community property” principle.
See Jens-Uwe Franck, ‘So Hedge Therefore, Who Join Forever:’ Understanding
the Interrelation of No-Fault Divorce and Premarital Contracts, 23
INT’L J. L.,
POL. & FAM. 235, 243 (2009). Under this system, no matter how title is held,
each spouse owns half of the marital property. T
URNER, supra note 133, at 6–7.
136
See, e.g., Hessen v. Hessen, 33 N.Y.2d 406, 410 (N.Y. 1975) (taking
note of the fact that, under section 236 of the Domestic Relations Law, “a
divorce granted on the basis of the wife’s ‘misconduct’ will deprive the wife of
both her rights to alimony and the exclusive occupation of the marital
residence”).
137
DiFonzo & Stern, supra note 20, at 587.
138
UNIF. MARRIAGE & DIVORCE ACT § 160, 9A U.L.A. XX (1970). Using
definitions typical of community property systems, the Uniform Marriage &
Divorce Act became a prototype for widely adopted equitable distribution
statutes, in which courts are directed to make a just division of marital property
based on a series of factors.
139
NANCY COTT, PUBLIC VOWS: A HISTORY OF MARRIAGE AND THE
NATION 206 (2000).
140
DiFonzo & Stern, supra note 20, at 587.
141
1980 N.Y. Laws 434 (codified as amended at N.Y. DOM. REL. LAW §
236 (McKinney 2010)).
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New York and Divorce 809
amended following the 1979 Supreme Court case Orr v. Orr.
142
The Supreme Court fundamentally altered New York’s divorce
finance law by determining that gender based divorce statutes,
such as the one that governed alimony awards, were
unconstitutional due to their disparate treatment of male and
female parties.
143
The Court held that spousal support might be
awarded to either deserving spouse regardless of gender.
144
The
ruling was ultimately incorporated into the Equitable Distribution
Law, and courts now award maintenance to the less monied party
in order to maintain that spouse’s standard of living in the
aftermath of divorce.
D. Maintenance
Property division was tied to alimony, and New York’s change
to equitable distribution altered the law of alimony in a
fundamental way.
145
As in the Equitable Distribution Law, the
legislature replaced alimony with “maintenance” payments.
146
While the practice of alimony was rooted in the concept that the
husband was the primary source of financial support, and was thus
his wife’s caretaker, maintenance is based on the idea that
marriage is an economic partnership. Thus, under the alimony
system a husband was charged with financially supporting his ex-
wife because she lacked the means to do so herself.
147
Conversely,
maintenance payments represented compensation for loss of
142
Orr v. Orr, 440 U.S. 268 (1979) (holding that an Alabama statute
authorizing the imposition of alimony obligations on husbands in favor of wives,
but not in favor of husbands, was unconstitutional).
143
Id. at 283. The percentage of male alimony recipients rose to 3.6% in
the five-year period ending in 2006. Anita Raghavan, Men Receiving Alimony
Want a Little Respect, W
ALL ST. J., Apr. 1, 2008, http://online.wsj.com/
article/SB120700651883978623.html.
144
Orr, 440 U.S. at 280–82.
145
DiFonzo & Stern, supra note 20, at 588.
146
Id.
147
Which is the reason that alimony payments ceased once the ex-wife
remarried, since she would then be “taken care of” by her new husband.
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810 JOURNAL OF LAW AND POLICY
earning from the marital partnership.
148
Maintenance payments
were calculated in order to preserve the parties’ standard of living
during the marriage and to provide for the non-monied spouse’s
“reasonable needs.”
149
Courts were encouraged to limit the
duration of maintenance payments as a result of the legislation,
pushing for recipients to become self-sufficient as quickly as
possible.
150
Effectively, New York ended permanent spousal
support.
151
Despite the equitable change intended by the legislation, the
Equitable Distribution Law and subsequent shift away from
permanent alimony did not have the effect of alleviating post-
divorce economic inequality,
152
since most divorcing couples have
few assets to divide.
153
In most divorces, the equitable distribution
of assets does not offer each spouse enough of a solid economic
foundation in the aftermath of divorce.
154
It is much more costly to maintain two households than a
single marital home. However, the standard of living for men
generally increases in the aftermath of divorce while for women, it
significantly decreases.
155
This is because a high earning spouse—
traditionally the husband—can recoup his or her old lifestyle over
time whereas a low-earning or non-working spouse cannot do so as
148
Marsha Garrison, Good Intentions Gone Awry: The Impact of New
York’s Equitable Distribution Law on Divorce Outcomes, 57
BROOK. L. REV.
621, 640 (1991).
149
1980 N.Y. LAWS 434 (codified as amended at N.Y. DOM. REL. LAW. §
236 (B)(6) (McKinney 2009)). Maintenance ceased, under this system, when the
wife remarried. N.Y.
DOM. REL. LAW. § 236 (B)(6)(c) (West 2010). However,
maintenance could continue even if the wife was in a relationship with another
man, but not technically married. Id. at § 6(d).
150
Garrison, supra note 148, at 640.
151
In 1986, however, the New York legislature amended the Equitable
Distribution Law to permit indefinite maintenance payments in situations that
involved older and disabled women with no job skills other than homemaking
and child rearing. N.Y.
DOM. REL. LAW § 236(B)(6) (McKinney 1986)
(amended 2010); See also, N.Y.
JUR. DOM. REL. § 2206 (McKinney 2010).
152
DiFonzo & Stern, supra note 20 at 589, 598–99.
153
Garrison, supra note 148, at 662–64.
154
Id. at 658.
155
DiFonzo & Stern, supra note 20, at 595–96.
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New York and Divorce 811
easily or quickly, if at all. Thus, the post-divorce economic needs
of most non-working or low-earning spouses simply cannot be
achieved by equitable distribution of the marital assets.
156
The
income of high earning spouses is inevitably a much more valuable
“asset” than marital property.
157
It follows that the non-earning
spouse, who, with the passage of the Equitable Distribution Law,
traded an award of temporary maintenance for permanent alimony,
underwent a substantial economic deterioration in the wake of
divorce.
158
III. THE NEW LAW: CRITICISM, PRAISE, AND POTENTIAL PROBLEMS
The adoption of a no-fault divorce option has engendered both
excitement and outrage among the various parties involved in this
debate. Women’s groups in particular, who blame no-fault divorce
systems for the decreased occurrence of domestic violence, are
praising the ability of spouses to unilaterally divorce one another
as a major step forward. However, opponents point to the United
States’ high divorce rate—connecting no-fault divorce to the ease
with which couples can dissolve their marriages. Further,
confusion over the new law’s maintenance provisions has scholars
and practitioners concerned, and will undoubtedly be the cause of
future debate.
A. Unilateral Divorce
The key component to New York’s divorce law reform is the
addition of Domestic Relations Law Section 170(7), which allows
parties to divorce if the marital relationship has irretrievably
broken down for at least six months, and one party has so stated
under oath.
159
This judgment can be granted only after the issues of
equitable distribution, spousal maintenance, child support, counsel
156
DiFonzo & Stern, supra note 20, at 597.
157
Garrison, supra note 148, at 664.
158
See DiFonzo & Stern, supra note 20, at 597.
159
N.Y. DOM. REL. LAW § 170(7) (McKinney 2010).
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812 JOURNAL OF LAW AND POLICY
and expert fees, child custody and visitation are resolved.
160
One of the chief advantages of section 170(7) is the ability of
one spouse to dissolve the marriage without the consent of the
other.
161
This provision has received a great deal of criticism.
Women’s groups such as the National Organization of Women fear
that this “divorce on demand” will lead to increased divorce rates
and will negatively impact the financial security of women who
will be left destitute once their husbands unilaterally divorce
them.
162
Other opponents of the law cite children as the “voiceless
third parties in divorce,” and argue that making divorce “easy”
gives couples the opportunity to split up despite the fact that
repairing their marriage for the sake of their children may be
possible.
163
Others argue that, because women seek divorce more
frequently than men,
164
no-fault divorce disproportionately harms
160
Id. These issues may be resolved by either the parties or determined by
the Court. Id.
161
See id.
162
See Marcia Pappas, Reject Divorce on Demand, Comment to Is New
York Ready for No-Fault Divorce?, N.Y.
TIMES BLOG (Jun. 15, 2010),
http://roomfordebate.blogs.nytimes.com/2010/06/15/is-new-york-ready-for-no-
fault-divorce/#marcia. See also Andrew J. Cherlin, Not Your Mother’s Divorce,
N.Y.
TIMES, June 15, 2010.
163
Barbara Dafoe Whitehead, The Voiceless Third Parties, N.Y. TIMES
BLOG (Jun. 15, 2010), http://roomfordebate.blogs.nytimes.com/2010/06/15/is-
new-york-ready-for-no-fault-divorce#barbara.
On this score, a consensus among social scientists has emerged. It
distinguishes between children in families where parents are engaged in
unremittingly high levels of conflict and children in families where
parents are unhappy but have low conflict. In high conflict families,
children are better off if their parents divorce. In low-conflict families,
however, children are better off if their parents stay together and repair
the marriage. Sadly . . . the majority of parental divorces today occur in
low-conflict situations.
Id.
164
Research shows that the spouse who “wants out” of the marriage most is
“more often the wife.” Betsey Stevenson, Divorce Reform Hits New York,
F
REAKONOMICS (Jun. 16, 2010), http://wwwfreakonomics.com/2010/06/16/
divorce-form-hits-new-york/. Women in the United States currently file slightly
more than two-thirds of divorces. Vicki Larson, Why Women Walk Out More
Than Men, T
HE HUFFINGTON POST (Jan. 24, 2011, 2:58 AM), http://www.
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New York and Divorce 813
men since men are unlikely to secure custody of children in the
aftermath of divorce and are often ordered to make child support
payments.
165
Conversely, family law scholars and practitioners point out that
one of the most surprising aspects of the no-fault divorce system is
that it seems to have little, if any, effect on divorce rates.
166
At the
time most states across the country began adopting no-fault
divorce systems, the divorce rate doubled.
167
However, this
increase in divorce rates occurred “in equal measure in those states
adopting unilateral divorce” as in states where fault-based divorce
systems remained in place.
168
Additionally, proponents of the new
law point out that the state with the lowest divorce rate in the
country, Massachusetts, has permitted no-fault divorce since
1975.
169
Although divorce rates may increase in the aftermath of
huffingtonpost.com/Vicki-larson/why-women-want-out-more-t_b_792133.html
(discussing a study done by the National Marriage Project of the University of
Virginia, which found that two-thirds of all divorces are initiated by women);
See also Margaret F. Brinig, Penalty Defaults in Family Law: The Case of Child
Custody, 33
FLA. ST. U. L. REV. 779, 792 (2006).
165
See generally JEFFERY M. LEVING WITH KENNETH A. DACHMAN,
F
ATHERS’ RIGHTS: HARD-HITTING & FAIR ADVICE FOR EVERY FATHER
INVOLVED IN CUSTODY DISPUTE 1–3 (1997). See also Judith Seltzer,
Consequences of Marital Disruption for Children, 20
ANN. REV. SOC. 235, 240–
41 (1994) (noting that mothers often obtain custody of children after divorce).
Rights of a Non-Custodial Parent Paying Child Support, L
IVESTRONG.COM
(June 3, 2010), http://www.livestrong.com/article/138803-rights-non-custodial-
parent-paying-child-support/ (“Most payers of child support are men. . . .”).
166
See, e.g., Betsey Stevenson, Divorce and Domestic Violence, N.Y.
TIMES BLOG (Jun. 15, 2010), http://roomfordebate.blogs.nytimes.com/2010/
06/15/is-new-york-ready-for-no-fault-divorce#betsey.
167
Id.
168
Id.
169
Cherlin, supra note 162. “[Massachusetts’] divorce rate is low for at
least two . . . reasons: [f]irst, its population is highly-educated, and educated
people avoid marrying young, which is a risk factor for divorce. Second, it has a
large Catholic population, and Catholics are still somewhat less likely to
divorce.” Cherlin notes that New York has an equally educated populous with a
great deal of Catholics. Id. Therefore, he expects the rate of divorce in New
York (which is currently tied for the fifth lowest rate of divorce in the country)
to remain low despite no-fault divorce. Id.
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814 JOURNAL OF LAW AND POLICY
New York’s adoption of no-fault divorce, studies of other states
show that this increase will likely be temporary.
170
Further, advocates of no-fault divorce herald it as one of the
best means of combating domestic abuse.
171
Reports of domestic
violence tend to decrease in states that adopt no-fault divorce.
172
Studies show that the decrease in domestic violence is not simply
due to the fact that spouses being abused can unilaterally leave
their abusive partners, but because “abusive spouses understand
that they will be left.”
173
Additional praise of no-fault divorce
systems attribute decreased rates of female suicide to the ability of
abused or unhappy women to unilaterally leave their partners.
174
Therefore, it appears that no-fault divorce systems tend to provide
an important benefit to particularly defenseless members of
society.
B. Maintenance
The enactment of Domestic Relations Law section 170(7) is
only a small portion of the New York divorce reform package.
175
The accompanying bills that amend Domestic Relations Law
sections 236, 237, and 238 contain provisions to protect the less
monied spouse.
176
The new laws require the court to provide for
temporary support during a divorce proceeding when the parties
have unequal financial resources.
177
The revision of pendente lite
170
Id. New Yorkers waiting to file for divorce, who did not have grounds
to do so, will file immediately, which will likely result in a short swell in
divorce rates. Id.
171
See, e.g., Stevenson, supra note 166.
172
Studies show a marked decrease in domestic violence among states that
adopted no-fault divorce systems relative to states (such as New York) that did
not. Id.
173
The studies show a thirty-percent decline in domestic violence, which
indicates that violence in lasting marriages decreased. Id.
174
Id.
175
See N.Y. DOM. REL. LAW §§ 236–38 (McKinney 2010).
176
Id.
177
Id.
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New York and Divorce 815
awards,
178
which order the monied spouse
179
to pay interim counsel
fees for the non-monied spouse during the course of the case so as
to enable her or him to carry on or defend it, were designed to
better reflect the circumstances couples face during divorce
proceedings.
180
The new laws create a presumption that the less
monied spouse will be entitled to the payment of these fees, which
will be set by a new formula.
181
Further, the new law revises the
way that temporary maintenance awards are calculated by granting
justices a mathematical formula to determine presumptive
awards.
182
Lastly, the method for determining post-divorce
maintenance awards received an overhaul with the addition of
extra factors that the court may consider when deviating from the
presumptive award.
183
The new statutory guidelines established for determining
temporary maintenance are intended to provide greater consistency
and fairness.
184
However, the mathematical formula for awarding
presumptive temporary maintenance, and the factors to be
considered by courts when deviating from this presumptive award,
may be a cause of some confusion for justices. The temporary
maintenance formula for presumptive awards requires Supreme
Court justices to take two sets of calculations into account.
185
The
new mathematical formula for determining temporary maintenance
is meant to provide uniformity and predictability. However, the
178
Pendente lite awards are the interim support payments provided to the
lower income spouse while divorce litigation is pending. 65
AM. JUR. 2D
Receivers § 3 (West 2010).
179
The spouse with larger financial net worth.
180
N.Y. DOM. REL. LAW § 236(B)(5) (McKinney 2010).
181
Id.
182
Id.
183
Id.
184
Stashenko, supra note 15.
185
First, the formula requires subtracting twenty-percent of the lower
earning spouse’s income from 30% of the higher spouse’s income. (M=0.30(H)–
0.20(L)). N.Y.
DOM. REL. LAW § 236(B) (McKinney 2010). The second formula
calls for the court to subtract the lower earning spouse’s income from 40% of
the combined income of both spouses. (M=0.40(H+L)–L).
Id. The Court will use
the lower of the two figures to set the guideline amount of temporary
maintenance. Id. at 5-a(c)(1).
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816 JOURNAL OF LAW AND POLICY
determination of temporary maintenance awards is ultimately at
the discretion of the courts, as justices are free to deviate from the
presumptive award if he or she “finds that the presumptive award
is unjust or inappropriate.”
186
Thus, a method that was intended to
take the uncertainty and confusion out of determinations of
temporary maintenance, by providing parties with a mathematical
formula, is not much changed from that of the old method of
calculating temporary maintenance. Additionally, the statute’s
vague guidance for justices on how to determine whether a
presumptive award is “unjust or inappropriate” will undoubtedly
confound justices.
187
What is worse, however, is that the lack of
guidance will ultimately create windfalls for some lucky parties
while others will be required to make do with the scant terms of
the presumptive award.
Additionally, the presumptive temporary maintenance formula
only applies to the first $500,000 of income.
188
Any income above
this point may not be calculated into the abovementioned
mathematical formula but must be considered separately by the
court in determining temporary maintenance.
189
This will
inevitably be an added source of confusion and possible tension for
divorcing New Yorkers. Because New York is one of the
wealthiest states in the country, with six of its sixty-two counties
among the wealthiest per capita in the nation,
190
it is likely that
many justices will have to determine additional guideline amounts
of temporary maintenance through the consideration of a variety of
imprecise factors presented by the statute.
191
Thus, the new divorce
finance laws largely leave wealthy parties to litigate the details of
186
Id. at 5-a(e).
187
Stashenko, supra note 15.
188
N.Y. DOM. REL. LAW § 236(B)5-a(b)(5) (McKinney 2010).
189
Id.
190
Francesca Levy, America’s 25 Richest Counties, FORBES.COM (Mar. 4,
2010), http://www.forbes.com/2010/03/04/america-richest-counties-lifestylereal
-estate-wealthy-suburbs_2.html.
191
N.Y. DOM. REL. LAW § 236 Part B, 5-a(c)(2)(i)-(xix) (McKinney 2010).
These factors include the marriage’s length, the substantial differences in the
parties’ incomes, and the parties’ standard of living established during the
marriage. Id.
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New York and Divorce 817
their pre- and post-divorce maintenance, and this will likely affect
many New York couples.
Another foreseeable concern with the law’s new divorce
finance provisions lies in the determination of post-divorce
maintenance awards. In calculating maintenance, justices are
charged to consider an array of factors such as the length of the
couple’s marriage, the standard of living of the parties, the earning
capacity of the parties and their prospects of employment, and
other factors.
192
These factors are often subjective and can be
difficult to measure, which may allow justices to vary dramatically
in their maintenance awards. An “outspoken supporter”
193
of New
York’s implementation of no-fault divorce, former Appellate
Division Justice Sondra M. Miller, noted that “if [I] were still
hearing divorce cases, [I] would be confused by how to set
maintenance.”
194
While the new law set up a Law Revision
Commission to study the effect of the new maintenance provisions
on the setting of maintenance levels around the state, in the
interim, there may be significant differences in maintenance
awards that will unduly disadvantage some spouses throughout the
state.
195
The new maintenance formulas are the new law’s most
striking weakness and will likely be the source of much confusion.
The reform of New York’s divorce laws was intended to make
divorce more equitable and less time consuming and costly.
However, the new temporary and post-divorce maintenance
provisions offer confusing and potentially time consuming
solutions to an already uncertain and drawn out process.
IV. RECOMMENDATIONS AND PROPOSED SOLUTIONS
The enactment of a no-fault option for the dissolution of
marriage in New York is a positive development in the domestic
192
N.Y. DOM. REL. LAW § 236 Part B, 5-a(e)(1)(a)-(q) (McKinney 2010).
193
Stashenko, supra note 15.
194
Id. Miller noted: “If I were a judge, does it mean that I consider child
support? The law is not clear. It is a very troublesome piece of legislation . . . .”
Id.
195
Id.
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818 JOURNAL OF LAW AND POLICY
relations laws of the state. However, while fault based divorce laws
have their evils, they also encourage (or at times force) spouses to
negotiate with one another in order to secure adequate post-divorce
settlements. The default rules provided by no-fault divorce systems
ignore the fact that each divorce is as unique as the circumstances
that brought the couple to desire an end to their marriage. Often
times, one party is at “fault,” and if post-divorce settlements are to
be properly calculated, all of the facts should be considered,
including the blameworthy conduct of the parties. Further, in the
likely event that New York courts continue to consider fault in the
distribution of property and maintenance awards only in the most
egregious cases, New Yorkers contemplating marriage should
enter into premarital or post marital agreements so that they have
the requisite control over their post-divorce lives.
A. WHY A LITTLE FAULT IS A GOOD THING
While “fault allegations and fault trials add significantly to the
cost, delay and trauma of matrimonial litigation,” in many cases
litigants use fault as a tactical advantage in securing a more
equitable post marital settlement.
196
This “tactical advantage”
relates to the fact that many courts do not adequately provide post-
divorce financial protection for the non-monied spouse.
197
For true
post-divorce equitable distribution, New York’s divorce finance
laws should take fault into account in situations where fault is
relevant.
The reasons for divorcing and the financial position of the
parties are unique in each divorce. Often some form of fault does
exist, and in order for courts to adequately address the dissolution
of the marriage before them, they should be able to consider all of
the events that led the parties to seek divorce. In keeping with the
Court of Appeals’ holding in O’Brien, New York courts only allow
fault to be a consideration in maintenance awards and property
division in “egregious cases which shock the conscience of the
196
Miller, supra note 3, at 553; See also Kolker & Hurtado, supra note 6.
197
Peter Nash Swisher, The ALI Principles: A Farewell to Fault-But What
Remedy for the Egregious Marital Misconduct of an Abusive Spouse? 8 D
UKE J.
GENDER L. & POL’Y. 213, 214 (2001).
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New York and Divorce 819
court.”
198
In O’Brien, the husband sought consideration of the
wife’s fault in respect to the equitable distribution of the couples’
martial property.
199
However, the court held that there was no
suggestion that the wife was guilty of fault sufficient to shock the
conscience of the court, as was required for fault to be taken into
account in the equitable distribution of property.
200
New York courts should reconsider the O’Brien standard and
allow for the consideration of fault. Of course, this infusion of fault
would have no bearing on the actual granting of divorce but would
be considered solely for the purposes of maintenance and property
distribution. According to the American Bar Association, marital
fault is a “factor” in awarding maintenance and dividing property
in twenty-five states and the District of Columbia.
201
If no-fault
divorce is to “do justice,”
202
New Yorkers should have the same
opportunity.
203
By removing the need for fault, New York’s Domestic
Relations Law also takes away the strategic position that fault
often plays in divorce settlements.
The threat of a fault divorce trial has often been used as a
negotiating tool between warring spouses . . . [W]hen a
spouse didn’t want to divorce for religious or other reasons,
the threat of a trial airing marital disputes or proving the
allegations of fault, might be used as a negotiating tactic
paving the way for better settlement terms . . . No-fault
198
See, e.g., O’Brien v. O’Brien, 66 N.Y.2d 576 (N.Y. 1985). Although the
O’Brien Court failed to define “egregious misconduct,” lower courts have
concluded that in order for conduct to affect equitable distribution, non-
economic misconduct must “consist of behavior that falls well outside of the
basis for an ordinary divorce action.” Thomas A. Elliot, Discovery and ‘Non-
Egregious’ Marital Fault, 12
NO. 1 N.Y. FAM. L. MONTHLY 3, 4 (Sept. 2010).
199
O’Brien, 66 N.Y.2d at 576.
200
Id.
201
A.B.A., ALIMONY/SPOUSAL SUPPORT FACTORS, available at http://
www.abanet.org/family/familylaw/flqwinter07_alimony.pdf (last visited Mar.
23, 2011).
202
Wilson, supra note 27.
203
Id.
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820 JOURNAL OF LAW AND POLICY
divorce [] takes this card out of the mix.
204
The positive effects of no-fault divorce in New York should
not preclude courts from considering the harmful symptoms of real
marital fault when structuring the couple’s post-divorce property
settlement or maintenance allocation.
205
Many courts in jurisdictions where the legislature enacted no-
fault divorce laws have held that fault may be considered.
206
As is
evidenced by the decisions of courts in other jurisdictions, the fault
of one or both parties may properly be considered in respect to
alimony, spousal support, or property division pursuant to a
divorce based on no-fault grounds. Because New York’s current
policy of not considering fault during maintenance determinations
is similarly non-statutory, its courts should note the reasoning
behind the decisions of other jurisdictions and make a common-
law based change by allowing the consideration of fault in
appropriate circumstances.
Other no-fault states have considered fault in maintenance
determinations. In Huggins v. Huggins, the court rejected the
husband’s assertion that Alabama’s no-fault divorce statute
precluded the consideration of fault in the court’s grant of
alimony.
207
The court wisely indicated that marital misconduct was
a natural aspect of deciding alimony payments if there was fault to
be taken into consideration.
208
The court held that a trial court
might consider fault when making a property division, even if it
204
Kolker & Hurtado, supra note 6.
205
Evans, supra note 34, at 475.
206
See, e.g., Edwards v. Edwards, 26 So.2d 1254, 1260 (Ala. Civ. App.
2009); Cooper v. Cooper, 382 So.2d 569, 571 (Ala. Ct. App. 1980); Miller v.
Miller, 361 So.2d 577, 579 (Ala. Ct. App. 1978); Huggins v. Huggins, 331
So.2d 704, 707–08 (Ala.Ct. App. 1976); Sides v. Sides, So.2d 677, 679 (Ala. Ct.
App. 1969). Occurring in jurisdictions where the no-fault provision did not
include the role of fault in maintenance determinations or property division
pursuant to a divorce based on no-fault grounds in the legislation itself.
207
Huggins, 331 So.2d at 707–08.
208
Id.; see Sides, So.2d at 679 (allowing fault to be considered); Miller, 361
So.2d at 579 (the Court considered the fault of a husband in committing
adultery); Cooper, 382 So.2d at 571 (the Court considered the fault of a spouse
in committing adultery).
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New York and Divorce 821
does not grant a fault-based divorce.
209
The Edwards court went a
step further adding that, “the facts and circumstances of each
divorce case are different,” and thus trial courts should consider
each of the particular facts and circumstances surrounding the case
at bar in dividing property.
210
In Edwards, the wife had abused
drugs and alcohol throughout the couple’s marriage and was thus
entitled to less than equitable distribution in light of the fault she
played in the marital dissolution.
211
A Connecticut court likewise considered a husband’s fault in
connection with an award of maintenance and division of marital
property in Sweet v. Sweet.
212
The Sweet court noted that, although
fault was not a consideration under the state’s divorce statute, the
trial court could properly consider reasons for the dissolution of the
marriage in making financial awards.
213
This supports the
aforementioned proposition that no two divorces are alike and that
courts have a duty to review each case before them in its entirety.
Further, in Givens v. Givens, the court noted that “[t]he trial
court has discretion in the division of marital property, and a just
division does not have to be equal, particularly where one party has
engaged in misconduct.”
214
The court went on to explain that the
conduct of parties during the marriage is a factor to be considered
when allocating marital property.
215
However, it is important to
note the Givens court’s caution: although marital fault should be
taken into account in dividing marital property, “it should not serve
as a basis for ordering excessive maintenance against, or
inadequate marital property to, the offending spouse.”
216
The
209
Edwards, 26 So.3d at 1260.
210
Id. at 1259.
211
Id. at 1260.
212
Sweet v. Sweet, 462 A.2d 1031 (Conn. 1983).
213
Id.
214
Givens v. Givens, 599 S.W.2d 204, 205–06 (Mo. Ct. App. 1980) (trial
court has discretion in division of martial property and a just division does not
have to be equal, particularly where one party has engaged in misconduct).
215
Id.
216
Id.; see Hogan v. Hogan, 651 S.W.2d 585, 587 (Mo. Ct. App. 1983) (the
conduct of the parties is among the factors to be considered in the division of
marital property).
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822 JOURNAL OF LAW AND POLICY
purpose of considering fault in the distribution of property should
not be to punish the party at fault, but to allow for all relevant facts
to be considered in establishing an equitable post-divorce
settlement.
In an apt holding by the Nevada Court of Appeals in Heim v.
Heim, the Court noted that the concept of fault is consistent with
the statutory requirement that property division and alimony
awards be just and equitable, and have regard to the respective
merits of the parties.
217
Similarly, in Woodside v. Woodside, a
South Carolina court noted that the marital conduct factor becomes
important in equitable distribution when the conduct of one party
to the marriage throws a burden on the other party that falls beyond
the norms to be expected in a marital relationship.
218
In such a
situation, the court stated, marital misconduct should affect
property distribution.
219
As Professor Robin Fretwell Wilson wrote, “Americans care
why marriages break apart. Infidelity, violence [and] abandonment
matter. This does not mean that we must uncritically embrace the
old fault-based divorce laws . . . [but] [i]t does suggest [that] we
need a prudent and realistic search for new approaches to enacting
our shared moral understanding of marriage.”
220
In response to its
new no-fault divorce provision, New York courts should take heed
of the manner in which other jurisdictions examine fault in the
distribution of marital property and maintenance awards. Because
fault includes more than “extremely outrageous behavior.”
221
New
217
Heim v. Heim, 763 P.2d 678, 680 (Nev. 1988) (statutory requirement
that awards be “just and equitable” applies to awards of alimony as well as to
property disposition).
218
Woodside v. Woodside, 350 S.E.2d 407, 412 (S.C. Ct. App. 1986) (in
making an alimony award, court should consider the conduct of the parties).
219
Id.
220
Robin Fretwell Wilson, Don’t Let Divorce Off the Hook, N.Y. TIMES
BLOG (Oct. 1, 2006), http://roomfordebate.blogs.nytimes.com/2010/06/15/is-
new-york-ready-for-no-fault-divorce/#robin.; see also Lynn D. Wardle, Beyond
Fault and No-Fault in the Reform of Marital Dissolution Law, in R
ECONCEIVING
THE
FAMILY: CRITIQUE ON THE AMERICAN LAW INSTITUTE’S PRINCIPLES OF THE
LAW OF FAMILY DISSOLUTION 16–17 (Robin Fretwell Wilson, ed., Cambridge
University Press 2006).
221
O’Brien v. O’Brien, 66 N.Y.2d 576, 590 (N.Y. 1985).
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New York and Divorce 823
York courts must reconsider the standard set forth in O’Brien and
work toward a more equitable system of marital dissolution.
B. The Argument for Premarital Agreements in No-Fault
Divorce Jurisdictions
Marriage, at its core, is a contract. Because individuals do not
enter into contracts without negotiating the terms, entering into the
most important contract of one’s life should not be treated any
differently or with less care. Couples can choose to write this
important marriage contract themselves via premarital agreements,
or they can accept the default contracts written by the State
Legislature.
222
Accordingly, New Yorkers considering marriage in
the increasingly streamlined divorce system that no-fault divorce
encourages, should write the terms of their own marriage and
divorce by entering into premarital or post marital contracts.
Couples planning to marry have the option of entering into
premarital agreements.
223
Premarital agreements are recognized by
all fifty states and are becoming more and more popular among
couples contemplating marriage.
224
Under early common law,
prenuptial agreements were only applicable to the division of
222
Steven E. Landsburg, The Marriage Contract: Divorce is Just a
Breakdown in Negotiations, S
LATE.COM (Sept. 12, 1997), http://www.slate.com.
223
Additionally, post-marital agreements are designed for couples that are
already married and wish to negotiate the terms of a potential future divorce.
R
OBERT E. OLIPHANT & NANCY VER STEEGH, WORK OF THE FAMILY LAWYER
445–47 (2d ed., Aspen Publishers 2008).
224
Only approximately 5–10% of couples enter into premarital agreements
in the United States. Beth Potier, For Many, Prenups Seem to Predict Doom,
H
ARV. GAZETTE (2003), http://news.harvard.edu/gazzette/2003/10.16/01pre
nup.html. The article interviews Heather Mahar, a fellow at the John M. Olin
Center for Law, Economics, and Business at Harvard Law School who surveyed
students on Harvard’s campus on premarital agreements and divorce opinions.
Mahar found that although respondents to her survey were able to correctly
identify the national divorce rate (approximately 50%), the percent that thought
they would eventually divorce was a mere 11.7%. Id. These inconsistencies
underlie the reasoning for why the actual rate of couples that sign premarital
agreements is only 5–10%. Id.
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824 JOURNAL OF LAW AND POLICY
property upon one spouse’s death.
225
However, due to the increase
in divorce rates, courts were forced to expand their acceptance of
premarital contracts to govern property distribution in the event of
divorce.
226
The 1970 Florida Supreme Court case Posner v. Posner
marked a shift in widespread judicial acceptance of premarital
agreements.
227
Although the Posner Court recognized an interest in
keeping marriages together, it took note of the rising divorce rate
and reasoned that “prospective marriage partners . . . may want to
consider and discuss . . . the disposition of their property and the
alimony rights of [a spouse] in the event their marriage should
fail.”
228
Premarital agreements are particularly beneficial in no-fault
jurisdictions because of the divorce system’s ability to trap couples
in disadvantageous financial situations during marriage. For
example, a spouse who gives up or postpones his or her
professional career to stay home with children or concentrate on
caring for the marital home makes personal investments that have
little value outside of the marriage.
229
In no-fault divorce systems,
where default rules are not totally equitable with regard to post
marital maintenance or property division, dependent spouses are at
the mercy of their financially secure partner.
230
If that partner
unilaterally decides to leave the marriage, these marital
investments are devalued because they are economically worthless
outside the home.
231
Conversely, the partner who makes such
225
OLIPHANT & VER STEEGH, supra note 223, at 445.
226
Id.
227
Posner v. Posner, 233 So.2d 381, 385 (Fla. 1970) (holding that
antenuptial agreements, settling alimony and property rights of the parties upon
divorce, if conforming to stringent rules prescribed for ante- and post-nuptial
agreements settling property rights of spouses and made in good faith and on
proper grounds, cannot be said to facilitate or promote procurement of a divorce
and are valid as to conditions existing at the time the agreement was made).
228
Id.
229
Franck, supra note 135, at 254.
230
Id.
231
See D. KELLY WEISBERG, FAMILY LAW 147–49 (1999). See also
Garrison, supra note 148, at 632.
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New York and Divorce 825
investments in the marital home and/or childcare cannot simply
walk away from the marriage without suffering economic
destitution.
232
Thus, spouses who foresee devoting their time to
childcare or domestic management should negotiate the post-
divorce rules on permanent maintenance or property division by
entering into pre or post marital agreement.
233
Interestingly, courts have come to regard the enforceability of
premarital contracts as a natural consequence of the introduction of
no-fault divorce.
234
Prior to the widespread availability of no-fault
divorce, courts feared that premarital agreements might provide
incentive for a spouse to commit fault and exit his or her marriage
without consequence. Because the terms of divorce were already
provided for in a pre-nuptial contract, courts believed that the
couple had little to fear from divorce and thus little reason to
behave. However, in the wake of no-fault divorce regimes and
Posner, courts have instead come to view premarital agreements as
a straightforward way of resolving the financial issues of
divorce.
235
Therefore, premarital agreements should be interpreted
as a corrective measure for the disadvantages inflicted by the
decline of marriage through the already widespread availability of
no-fault divorce.
236
By entering into premarital agreements prior to marriage,
parties may insist on stronger rights to alimony or a larger share of
marital property than is provided by the default rules.
237
The fewer
the rights to maintenance payments or to a share of the property
232
Franck, supra note 135, at 254.
233
Id. at 260–61.
234
Frey v. Frey, 41 A.2d 705, 709–10 (Md. 1984) (explaining that
antenuptial agreements settling alimony or property rights of parties upon
divorce are not per se against public policy and may be specifically enforced).
“The old view’s fear that spouses could induce a divorce through fault, without
consequences, because the terms of divorce were settled in a [premarital
contract], is no longer persuasive because that spouse [can now] seek a no-fault
divorce.” Id.; see also L
AURA W. MORGAN & BRETT R. TURNER, ATTACKING
AND
DEFENDING MARITAL AGREEMENTS 33–34 (2001).
235
Jana B. Singer, The Privatization of Family Law, WIS. L. REV. 1443,
1475 (1992).
236
Franck, supra note 135, at 238.
237
MORGAN & TURNER, supra note 234, at 35–36.
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826 JOURNAL OF LAW AND POLICY
provided by the no-fault default rules, the more contractual
protection seems appropriate.
238
Therefore, with the advent of no-
fault divorce and the failure of New York courts to consider
marital fault in the division of property and determination of
maintenance awards, couples considering marriage should enter
into premarital agreements. Negotiating the terms of a potential
divorce may be the best route to a secure and equitable marriage.
CONCLUSION
The enactment of a no-fault divorce system is a positive
development for New York’s Domestic Relations Laws. By
eliminating the strict fault requirements for divorcing spouses, the
law ensures that New Yorkers who wish to dissolve their marriage
can do so without added time, expense, or perjury. Additionally,
studies of no-fault jurisdictions illustrate other advantages to
adopting unilateral divorce such as the decrease in incidents of
domestic violence and lower rates of female suicide.
239
However, the passage of a no-fault divorce system in New
York eliminates any bargaining leverage economically
disadvantaged spouses have in the wake of divorce. Despite the
fact that in some divorce cases there is assignable fault, New York
courts fail to take this into account in awarding maintenance and
dividing property.
240
In light of the state’s adoption of unilateral
divorce, New York courts must reevaluate the O’Brien standard
that allows marital fault to be considered only in egregious cases
that “shock the conscience.”
241
Further, with the loss of fault as a
negotiating tool, New Yorkers looking to protect themselves and
their assets in the wake of divorce should seek alternative solutions
such as premarital agreements.
238
Franck, supra note 135, at 262.
239
See, e.g., The Editors, supra note 1 (discussing various pros and cons of
no-fault divorce).
240
Pappas, supra note 162.
241
O’Brien v. O’Brien, 66 N.Y.2d 576, 589 (N.Y. 1985).
