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Divorces Up Since NY Adopted No-Fault Law

By Sara Foss

Since New York’s no-fault divorce law went into effect in October 2010, none of the divorces handled by attorney Barb King have been contested.

King, who practices family and matrimonial law at Albany-based Tully Rinckey, handles between 50 and 75 divorces each year. Now that spouses can divorce more easily, without citing reasons such as adultery and cruel and inhuman treatment for dissolving a marriage, more couples are choosing to part ways.

“I’m seeing a much higher rise in filings due to no-fault,” King said.

According to the state Office of Court Administration, in 2011 there were 49,785 filings for uncontested divorce throughout the state, compared to 45,618 uncontested divorce filings in 2010, a 9.1 percent increase. The number of contested divorce filings also jumped in that time, from 13,849 to 14,538, a 4.9 percent increase. Overall, divorces in New York state rose 8.1 percent.

In Schenectady County, the percentage increase in uncontested divorce filings was much greater, according to OCA.

In 2011, there were 438 uncontested divorce filings, up from 349 in 2010, a 25 percent increase. But the number of contested divorces actually fell, from 145 in 2010 to 132 in 2011, an 8 percent decline.

The Schenectady County figures are similar to those crunched by Tully Rinckey, using data from the state Department of Health’s New York State Vital Statistics. The firm found that divorces in the Capital Region climbed to their highest level in more than a decade. Regionwide, 3,493 divorces were finalized in 2011, a 19.2 percent increase from the previous year.

Prior to 2010, New York was the only state in the country without a law allowing a spouse to unilaterally decide to end a marriage. Instead, spouses who disagreed on whether to divorce couldn’t part ways unless one of the spouses proved that they had a reason, or grounds, to do so, such as adultery or abandonment.

Spouses could avoid this fault-finding process by separating for a year and coming to an agreement on matters such as custody and the division of assets.

Under the state’s no-fault law, a spouse can claim that their relationship has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. Courts have affirmed that litigants do not have the right to contest a no-fault claim; in one recent decision, the Fourth Judicial Department of the Appellate Division of the state Supreme Court ruled that a marriage can be found to be irretrievably broken based upon “one party’s testimony.”

Better way out

Melissa Breger, a professor of law at Albany Law School, said that overall, no-fault divorce has been a “welcome alternative” for litigants who do not wish to reveal traumatic facts in public, air dirty laundry in court or, in some cases, perjure themselves by accusing their spouse of behavior that never occurred in order to end their marriage.

Prior to the law’s passage, Breger had “some serious concerns” about no-fault divorce, as did advocates for domestic violence and other groups, such as the New York chapter of the National Organization for Women and the New York State Catholic Conference.

The big concern, Breger said, was how the law would impact survivors of domestic violence. Would it make it easier for women to get out of abusive relationships? Or would victims lose their bargaining power when it came to issues such as custody?

“There was a concern there would be no accountability for offenders, and that litigants wouldn’t have their day in court,” Breger said. She said that it’s probably too early to ascertain what the impact of the law has been on domestic violence survivors.

King said she has mixed feelings about no-fault divorce.

“Marriage is a contract,” she said. “You know the rules going in. Philosophically, no-fault is a bit screwy. You can walk away from marriage without consequences.”

Alton Abramowitz, who chairs the New York State Bar Association’s family law and serves as president of the American Academy of Matrimonial Lawyers, said no-fault divorce has had a positive impact.

He said it allows couples to get to the real issues in a case, such as the custody of the children, “without having to pay money to decide to divorce in the first place,” and for women with abusive spouses to end a marriage easily and quickly, as their husbands have no legal right to contest their decision.

The number of divorces fell during the recession.

According to a 2011 report from the National Marriage Project, 38 percent of married Americans who had been contemplating divorce or separation prior to the recession that started in December 2007 decided to delay divorcing due to the economic downturn.

“There’s been some talk that perhaps the economy slowed divorce in general,” Breger said.


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