Finding fault with No-Fault Divorce

June 20, 2009

New York’s continued adherence to a system of fault-based divorce has been described by many as archaic. In New York there are five grounds for divorce, cruel and inhuman treatment, adultery, abandonment, imprisonment exceeding three years, and divorce after a one year separation. Many people see New York’s divorce scheme as resistant to the modern system of divorce-at-will, but there are concerns no-fault divorce system can be unfair for women, who traditionally are not the primary income earners.

The New York chapter of the National Organization of Women (“NOW”) argues that adoption of true no-fault divorce would have the effect of harming women by allowing the generally wealthier husbands to obtain a divorce before all issues regarding economics  [*318]  and support for the dependent wife have been resolved. 91 As the head of the state chapter states, “the moneyed spouse, with no-fault, can literally hide the assets, take off, get married before the wife even knows what hit her.” 92 In addition, opponents of no-fault view divorce as a bargaining tool which women, especially low-income earners, possess during divorce proceedings. 93 If the husband is allowed to unilaterally file for divorce, a strategic bargaining chip is destroyed and women are left with little to no economic protection. NOW rests its long-standing stance, opposing unilateral no-fault, on the socio-economic position of women in society. The organization’s claim is that women overwhelmingly sacrifice their career and financial independence in order to fill the role of housewife and mother. Gabriella L. Zborovsky, BABY STEPS TO “GROWN-UP” DIVORCE: THE INTRODUCTION OF THE COLLABORATIVE FAMILY LAW CENTER AND THE CONTINUED NEED FOR TRUE NO-FAULT DIVORCE IN NEW YORK, 10 Cardozo J. Conflict Resol. 305

Ms. Zborovsky goes on to criticize New York’s recent move towards Collaborative Family Law as simply a band-aid solution to a problem that can only be solved by implementing a no-fault divorce regime, however I’m not so sure I agree with this.  Collaborative Family Law aims to incorporate mediation and alternative dispute resolution techniques into the divorce proceeding, as well as attempting to remove the financial incentive for lawyers to draw the case out in court (See: this article).  I think there are compelling reasons to retain the fault based system, as we are seeing elsewhere a general trend of tracking back from the norm of at-will divorce (for example Louisiana’s covenant marriage), and I also think there are compelling reasons to expect great success for the collaborative law approach to divorce.  Perhaps there is something to be said for New York’s more antiquated system, or perhaps rather it is that there are significant flaws in the predominant no-fault scheme that need to be addressed.

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