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Necessity of No-Fault Divorce

In 2010, New York added the “no-fault” ground for divorce, otherwise known as DRL §170.7. The addition allowed for one spouse to seek a divorce based upon their statement under oath that the relationship between the spouses has broken down irretrievably for a period of at least six months.

Often, uncontested and no-fault are terms that the general public interchanges but are quite different. Uncontested divorces, which are those in which the parties had previously entered into a settlement agreement resolving all of their economic and custody issues, are prevalent across the country as a separate cause of action, as they once were here in New York.

Prior to the inclusion of “irretrievable breakdown” as a cause of action for divorce in New York, New York had separation grounds for divorce in place that required that the spouses had not lived together for at least one year and had an executed separation agreement. New York and many other states still have this statutory cause of action in place. While all states have provisions for uncontested divorces, these laws require full resolution of economic and/or custodial issues by written agreement prior to the granting of a divorce. If the parties are unable to come to an agreement, they would bear the burden of having to prove fault in order to resolve the matter through litigation and successfully obtain a divorce. This burden can be costly, both financially and emotionally, to the divorcing couple and negatively impact any children caught in the middle.

Some states allow for the cause of the breakdown of the relationship as a relevant factor in determining spousal maintenance and equitable distribution, even if they are otherwise a “no-fault” state. As we move further away from the era of fault-based divorce in New York, the focus has shifted to the resolution of economic and custodial issues. In New York, the cause of the breakdown is considered in a limited way with regard to dissipation of marital assets or financial misconduct during the marriage under DRL §236 pt. B(5)(d)(14), as any other factor which the court shall expressly find to be just and proper. This consideration offers protection for spouses who are victims of financial abuse by the other spouse without having to also litigate the fault component of the breakdown. This is a logical and reasonable approach to addressing the appropriate relief of dissolving the economic partnership between the parties without the need for venomous spillover from their relationship into the Courthouse.

Recently, there has been legislation introduced in some states to eliminate No-fault divorce under the misplaced notion that forcing individuals to remain married protects the institution of marriage itself, regardless of violent or abusive conditions in the home. Reverting to fault-based divorce does not serve any logical interest. Having to prove fault fails to remove the emotional reactions of the parties that can impact their ability to consider reasonable agreements. Additionally, the elimination of no-fault divorces removes a crucial form of protection and escape for spouses who are victims of financial, verbal, and physical abuse. Forcing a victim of abuse to litigate against a controlling spouse who seeks to prevent them from leaving the marriage adds an extra financial barrier for the victims and prolongs the existence of toxic environments. When there are children involved, their continued exposure to these toxic environments causes well-documented damage to their mental, emotional, and overall well-being, not to mention the horrific situations that involve physical abuse of the children as well.

Furthermore, proving fault is a more costly option for the parties and the State. It will cause the already stressed courts to carry heavier matrimonial litigation dockets, thereby increasing costs and expenses within the judicial system and for the State itself. Financial burdens aside, there’s an increased toll on the mental health of the parties and the impact of extended and exacerbated conflict on the children. It is reasonable to foresee an increase in the rising temperatures in custody disputes, which is more than likely when the parties are forced to point fingers at each other in a courtroom in order to dissolve their marital estate. Additionally, this must be analyzed in consideration of the state’s direct interest in marital status and establishing public policy.

The National Bureau of Economic Research reported that suicide rates among women decreased by 20% with the introduction of no-fault divorce, beginning in 1969 in California under the leadership of then-Governor Ronald Reagan. Other notable decreases occurred in domestic violence against men and women, as well as the murder of women by their spouses. This has all been well researched and documented as directly related to the availability of no-fault divorce for decades. As such, it is almost a certainty that should states revert to fault-based divorce, these harrowing statistics will only increase. While it may seem like common sense to maintain the option for no-fault divorces, any arguments for legislation removing such grounds would have to address the inevitable uptick in cases of domestic violence and self-harm, as well as the increased emotional and financial costs of fault-based divorce, which should hopefully be an impossible bar to clear.

Leslie Silva is a Partner at Tully Rinckey PLLC’s Albany office where she practices family and matrimonial law, and education law. Leslie has represented individuals in all areas of family and matrimonial law, with a particular experience in high-net-worth matrimonial litigation. She can be reached at or at (888) 529-4543.

Reprinted with permission from the New York Law Journal. © 2023 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

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