Friday, July 2, 2010

About time, New York!

New York has finally joined the 21st century and passed a no-fault divorce law.

Quick historical review - in the olden days, in order to get a divorce, one spouse had to go to the court and prove that the other spouse was at fault for ruining the marriage on one of a number of specific grounds. (In Idaho, those grounds included adultery, extreme cruelty, desertion, neglect, and drunkenness.) Note that I said one spouse had to prove the grounds for divorce. If both spouses proved grounds for divorce - wife proves husband is a drunk, husband proves wife cheated - then they had to stay married!

So wife really wants a divorce, but none of those things has happened, so she goes ahead and arrange for husband to cheat on her. That'll work, right? Nope, that's collusion and/or condonation, so they have to stay married.

Since the 1970s, every state has decided this was a ridiculous process, and allowed no-fault divorce, where the spouses just have to prove that they don't want to be married any more. Every state except New York..

Most of the opposition to this law comes from the usual religious sources, but then there was this quote:

“Attorneys who line the wallets of elected officials will benefit legislatively and gain new clients from this heinous law,” said Marcia Pappas, president of the National Organization for Women’s New York chapter.

Pappas called out female legislators “who danced in the aisle as they threw women and children under the bus.”


In a short editorial, Pappas explains why she is campaigning vigorously against the meteor that is about to wipe out the legislative dinosaur of fault-only divorce.

Under “divorce on demand” legislation sponsored by Senator Ruth Hassell-Thompson and Assemblyman Jonathan Bing, either party can go into court, say the marriage has broken down, and get a divorce — no grounds are necessary. Approximately 95 percent of divorce cases in New York are resolved by the parties themselves, not by the judge, without going to court. This is the best possible process.

This happens in no-fault states, too. The vast majority of my cases settle out of court.

No-fault takes away any bargaining leverage the non-moneyed spouse has. Currently she can say, “If you want a divorce I’ll agree, but you have to work out a fair agreement.”

Fault-based divorce takes away any leverage an abused woman has. Currently she can say, "I'm leaving you," and her abuser can say, "You can't divorce me." Yes, she could prove up extreme cruelty, but that requires gathering a lot of evidence and using a lot of an attorney's time, making it quite expensive. Battered women generally don't have the money to do this.

Or, hypothetical #2, she says "If you want a divorce I'll agree, but you have to work out a fair agreement." Husband responds by saying, "Here's our fair agreement: you give me exactly what I want, or I'll do this," as he punches her in the eye. She reaches for her phone, but he pulls it away and breaks it over his knee. Then he grabs her by the hair, throws her to the floor, and strangles her until she passes out. Clearly wife could've used a third party, such as a lawyer, to help keep her safe during these "negotiations."

In fact, elsewhere in the same set of editorials, a Penn researcher notes that states that adopted no-fault divorce saw a 30% decrease in domestic violence, plus a drop in the suicide rate for women. One would think that the National Organization for Women would be in favor of reduced rates of domestic violence and female suicides, but whatever.

That is not “blackmail” as has been claimed by some no-fault proponents. Negotiating the terms of the breakup of a partnership is the way partnerships are dissolved in the business world. Women should have the same protection.

Partnerships in the business world don't have to prove that one of the partners is at fault for ruining the business. Why not? Because it would cost them a lot of time and money to prove this, and because it would make the partnership dissolution process more bitter.

In fairness, any partner to a marriage should be provided with notice that the other partner wants a divorce and given an opportunity to negotiate the terms for the divorce.

In the no-fault world, to initiate a divorce, the plaintiff has to give the defendant a copy of a summons that tells the defendant she's being sued, and a copy of the complaint that explains what she's being sued for. Then the defendant gives the plaintiff a copy of an answer and counterclaim, explaining what she wants out of the divorce. The parties are then free to negotiate right up until the date of the trial.

I've seen a number of divorce decrees negotiated by parties alone, with no lawyers involved. They frequently leave out assets or debts that they forgot they had (or that one spouse deliberately concealed from the other), or produce totally unworkable and/or unenforceable custody schedules. Sure, a no-lawyer divorce can work if you don't have kids, a house, a business, or a pension, but everyone else probably ought to see a lawyer.

Here in flyover country*, the parties are almost always ordered to see a mediator, who sits down with the parties and helps them negotiate divorce agreements. We have some mediators here who are absolute miracle workers, defusing conflicts and helping the parties come up with solutions they wouldn't have thought of on their own. I see no reason why New York, a state with about 12 times the population of Idaho, wouldn't have a number of qualified mediators available to assist in negotiations.

With “divorce on demand,” not only can the more-moneyed spouse begin hiding assets (which happens even under our current laws), but this spouse can proceed quickly with legal actions before the other spouse, with limited means, even has the time to find and hire an attorney.

Sure, the richer spouse can get a lawyer faster. But in the fault-only world, the richer spouse still has the advantage. The spouse with money can stop making payments on the other spouse's bills, or hide assets (as the author has acknowledged). Furthermore, if the parties are expected to negotiate without the benefit of a court, they won't be able to conduct discovery, the method lawyers use to find out things they don't know about. I've had plenty of clients who never had access to family finances and didn't know how much money was available to them until the case started and we started getting bank records, tax returns, credit applications, and so forth.

We must look at the socioeconomic standing of women in our society. Women clearly continue to be the non- or lesser moneyed spouse, as women continue to give up careers and financial independence for the role of housewife and mother. For this reason alone we must look closely at how divorce affects the lives of women and children and the role that the state should play to ensure that homemakers and children not be left destitute after divorce.

So the author has just said that the wife and the husband are in unequal socioeconomic positions, and yet the author expects the poorer wife, who may have little knowledge of the family's assets and debts, to be able to negotiate, by herself, on the same grounds as a richer, more financially involved, and probably physically stronger husband. No wonder the legislature wasn't persuaded.

*seriously, we try to tell people that Idaho isn't totally backwards and then they come out with a lottery game based on "Cheers"

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