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Lawmakers want New York to become 50th no-fault state

NOW, conservative Christians find fault with proposed bills

Sen. Ruth Hassell-Thompson sponsors legislation to allow no-fault divorce in New York. Photo by The Legislative Gazette.
May 17, 2010
New York would lose the distinction of being the only state in the nation to not have no-fault divorce statutes on its books if lawmakers seeking to pass marriage reform legislation get their way.

Beginning with California in the 1970s, states began making no-fault divorce available to their residents, with New York being the last holdout.

"Under New York state's current law, couples in deteriorating relationships are forced to assign blame of fault in order to validly end their marriages. By implementing a policy of no fault, this prolonged and often destructive process would be eliminated," said Sen. Ruth Hassell-Thompson, D- Mount Vernon.

At a May 6 hearing on a package of matrimonial reform bills being sponsored by Senate Democratic Conference Leader John Sampson, D-Brooklyn, and Hassell-Thompson, lawmakers took up bills that would allow no-fault divorce and reform the rules covering post-marital and spousal support obligations.

The hearing also focused on a proposal to ensure judges decide, before a final divorce decree is made, whether the more financially challenged spouse in a divorce proceeding will be awarded lawyers' fees to ensure both parties have equal representation.

In New York, divorces may only be granted on one or more of six grounds that include adultery, cruel or inhumane treatment, if a spouse has been in prison three or more years or if the spouse seeking a divorce has been abandoned by the other for at least a year.

Two grounds for divorce that can technically be turned into no-fault divorces are if the spouses have lived apart for a year after a written agreement or if a judicial separation agreement has been granted. However, one spouse could still prevent the other from achieving a divorce after the year is up by failing to take court action.

"Requiring a finding of fault traps individuals in failing relationships and exacerbates hostility and resentment between couples who have already indicated their desire to separate," said Sampson and Hassell-Thompson in a joint statement.

Legislation (S.3890/A.9753) sponsored by Hassell-Thompson and Assemblyman Jonathan Bing, D-Manhattan, would allow a no-fault divorce as long as secondary issues such as spousal support, child support and division of property have already been decided.

Though the bill was passed in the Senate's Judicial Committee 12 to 11 in March, the vote was not recorded, and Senate General Counsel Alison Greene said that due to confusion over whether the committee had officially passed the legislation, Sampson decided to put the bill up for a re-vote and placed it on the committee's agenda for Monday.

In the Assembly, where the bill has some bipartisan support, including Republican multi-sponsors, the legislation has been in the Judiciary Committee since January.

New Yorkers for Constitutional Freedoms, a conservative Christian lobbying group, opposes the bill because its leaders say legislators should be looking for ways to strengthen marriage and not make it easier to get divorced. The group says the bill would cause divorce rates to jump and reduce the negotiating power of a spouse who does not want the marriage to end. 

National Organization for Women-New York State President Marcia Pappas, who is in favor of allowing no-fault divorce, said she does not support the bill because it includes what she believes is a large loophole. The bill says a no-fault divorce cannot be issued unless all ancillary issues are resolved, "unless there are exigent circumstances placed on the record by the court." Pappas said the bill does not specifically explain what these issues could be.

"That phrase basically leaves a huge loophole in the bill for the monied spouse to trump up the reason to get a divorce without having to settle all of the issues," said Pappas. "What it does is it leaves the lesser monied spouse in a situation where then they have to go into court and try and fight all of these issues one at a time. It leaves the lesser monied spouse at a disadvantage in terms of negotiating."

Sens. Liz Krueger, D-Manhattan, and Diane Savino, D-Staten Island, said they both support the legislation.

"Currently, virtually every other state permits marriages to end without the condition of blame, forcing a victim of domestic violence to enter a costly court proceeding, where they must confront an abusive spouse," Savino said. "Providing a no-fault option would simplify the process for domestic violence survivors and potentially increase their safety."

Pamela Sloan, former chair of the New York City Bar Association's Matrimonial Law Committee and a current practicing marriage attorney, testified at the hearing and said, "New York alone is stuck in the past when it comes to marriage." She said the current divorce system is "detrimental to children and families, burdensome to already overworked court personnel and costly both financially and emotionally."

Hassell-Thompson and Assemblywoman Amy Paulin, D-Scarsdale have introduced another piece of matrimonial legislation. Bill S.7740/A.10984 would establish guidelines or a specific formula to calculate the amount and duration of spousal and post-marital support payments.

The bill's justification says the legislation would "provide the consistency and predictability for spousal support that the Child Support Standards Act has provided for child support."

The proposed post-marital income award formula would take 30 percent of the income of the spouse with greater assets and subtract 20 percent of the income of the spouse with fewer assets. That figure would be granted to the spouse who is financially dependent. A second formula could be 40 percent of the combined income of both spouses minus the income of the financially dependent spouse.

If the spouse with more assets has an income exceeding $500,000, the judge, under the proposal, could choose to adjust the award but would not be required to apply any formula to the income above $500,000. The duration of the payment would depend on how long the marriage lasted. The paying party would still be able to apply to the court to annul or modify a payment based on a change in either spouse's financial situation.

"Neither spouse should feel financially compelled into accepting potentially detrimental or unfair settlements. Post-marital income guidelines will simplify the basis on which a predictable and equitable settlement between two divorcing spouses may be reached," said Hassell-Thompson in a statement.

The bill was referred to both the Senate and Assembly Judiciary committees on May 5.

Sampson and Assembly Judiciary Committee Chairwoman Helene Weinstein, D-Brooklyn, are sponsors of another bill in the package. Bill S.4532-a/A.7569-a would require judges to make a decision on whether to order the payment of counsel fees — usually by the spouse with more assets to the spouse with less assets — before a final judgment is made in a divorce case.

Sampson said, "This legislation will better address today's economic and social realities and will help ensure that no party to a matrimonial case is strategically at a disadvantage for lack of resources to pursue or defend the case."

The bill passed in the Assembly in 2009 and was re-introduced this year and recently amended on third reading. It was also amended in the Senate Codes Committee, where the legislation has been since February. Greene said the Senate majority is hoping to bring the entire package of legislation to the floor for a vote on in early June.

Pappas said her group would support the counsel fee bill if the language were tightened. She argued that judges should be required to make a decision about the awarding of legal fees at the beginning of divorce proceedings.

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