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No-Fault Divorces

In October of 2010, No-Fault Divorce became possible in the State of New York. Prior to that date, it was necessary for the "fault" element of the divorce to be proven by one side. The parties could stipulate to whose fault it was, however, the No Fault ground did not exist.

The no-fault ground

When a relationship between a husband and wife has irretrievably broken down for a period of at least six months, a Judgment of Divorce will only be granted after the economic, support and custody issues have been resolved. Only one party must state, under oath, that the marriage has been irretrievably broken down for more than six months and all other issues have to have been resolved.

Clearly, fault will not be a problem under the new no-fault provision. However, there are several problems that will raise their ugly heads: possibility for delay, the attorney fee provision, and interim awards.

The attorney fee provision

The law presumes that the moneyed spouse (the one that makes the most money) will pay the attorney fees for the spouse that makes less money. This can prompt settlements, however, it can also prompt the case to continue longer or to become more protracted. It is always best when each party pays their own attorney. Nevertheless, there are many instances when the moneyed spouse can resort to economic tyranny and this new provision would protect the non-moneyed spouse from such tyranny.

The interim support provisions

Under a separate provision, the moneyed spouse must now pay temporary alimony to the non-moneyed spouse under various circumstances. Clearly, if one party is making 100K per year, and the other party is making 20K per year, the party that is making 100K a year will automatically, or necessarily, have to pay temporary alimony and the attorney fees for the lower income spouse. Now that the lower income spouse is on a level playing field, the law presumes that everyone will play fair and the divorce will proceed. The law does not presume when the lower income spouse receives an attorney fee award, together with temporary maintenance, that they will have no incentive whatsoever to settle the case. This can, and will, most likely occur.

All issues must be resolved before divorce under the no-fault provision is granted. In the situation presented above, the non-moneyed spouse can fight about custody, equitable distribution, and almost any other issue before the divorce is granted. The spouse with more money will continue to pay maintenance and the lower income spouse's attorney fees.

Under many circumstances, the new law is flawed, greatly harms the spouse that is making more money, and can cause divorces to be much more lengthy and protracted. There is nothing good about the law other than it preventing a malevolent spouse who is a high-income earner from exercising economic tyranny. However, it can empower a malevolent, lower income spouse to protract the litigation indefinitely on the temporary awards and attorney fees given from the higher income spouse.

Pros v. cons

Under the new law, if a spouse has little to no income, they will be placed on a level playing field. During the divorce, they will be taken care of. They will not be out-gunned and their attorney will receive fees from the other side. This prevents economic tyranny and promotes a level playing field. It also ensures that all issues are resolved before a no-fault divorce is granted, thereby making marriage not "disposable" but dispensable after all issues are resolved including those issues affecting children.

The moneyed spouse will no longer be able to exercise a high degree of economic leveraging and they will pay throughout the course of the divorce. The danger here is that they will be paying the other spouse (the lower-income spouse) to fight the divorce while paying the expenses for the lower income spouse such as alimony/maintenance, possibly child support and/or full carrying charges. Now that the lower income spouse is on a level playing field, the divorce will not end until all the issues are resolved.

When do couples resolve all their issues? Often never. These cases could go on towards a trial as the lower income spouse will not have the incentive to settle the case if they are receiving money and if they are acting malevolently. Clearly, a low income spouse who is acting in the best interest of the children would not prolong the divorce, but there are always a few bad apples that would cause their divorces to linger and become protracted. Accordingly, it could cause more trials rather than less trials.

Conclusion

This bill is inherently flawed. It will cause more divorce trials. The people who are making more money (the moneyed spouse) will not be able to act improperly or use financial tyranny against the lower income spouse. The lower income spouse will be taken care of during the divorce and legal fees will be paid to the lower income spouse so that there is a level playing field. After there is a level monetary playing field, the case will continue until all issues are resolved, and then the no-fault divorce will be granted. All issues being resolved sounds like a good idea, however, it will not work in the long-run. There will always be one side wearing a black hat and one side wearing a white hat. There will always be a good guy and a bad guy in every divorce. Therefore, divorces will continue to be protracted and they will not be able to be dismissed or "knocked out of the box" by there being no grounds. There does not have to be grounds for the divorce to continue and for people to continue to fight for one through two years on each and every issue while the higher income spouse pays for most all of it. For a lower income spouse who is a good person, this will benefit them and they will have a level playing field. It will protect them from having a higher income spouse who may be a bad person. For a higher income spouse who is a good person, they may be harmed greatly by a lower income spouse who is a bad person. They will be financially harmed regardless of whether the lower income spouse acts malevolently or benevolently during the course of this litigation.

This Bill was drafted by people who are not divorce attorneys and do not know what happens on a daily basis. The Bill is inherently flawed and it will take several years for the Bill to be ironed out through case law. Nevertheless, couples who want a divorce can now get a divorce without proving fault or grounds such as cruel and inhuman treatment or adultery. These grounds remain available when they apply.

In August of 2010, the law office of Bryan L. Salamone & Associates, P.C. spoke on television, on both News 12 and Channel 55, and had some of the first no-fault cases filed after October 12, 2010. Since the no-fault law has been enacted, Bryan L. Salamone & Associates, P.C. has continued to file three to five no-fault cases per week (on average) under the no-fault ground and all of our attorneys are well versed in all of the nuances of this law. Not only did Mr. Salamone speak as a divorce attorney, opining on the no-fault grounds, but he has been filing divorces almost each and every day on the no-fault ground, as is necessary to protect clients and advance their interests.

Whether a client is a moneyed spouse or a non-moneyed spouse, the retainers remain low, and the hourly rate remains low. The office of Bryan L. Salamone & Associates, P.C. remains committed to fighting hard for our clients with respect to all issues that are important to them during this time in their life.

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