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New York’s Antiquated Fault-Based Divorce System - A Judge’s Call for Action

New York remains the only state in the nation without a no-fault basis for divorce. Under New York's Domestic Relations Law, a party must allege "fault" on the part of his or her spouse as a prerequisite for obtaining a judgment of divorce. The sole exception to this is the "conversion divorce" (DRL Section 170(6)), which permits the entry of a judgment of divorce if the husband and wife have lived separate and apart pursuant to a written and acknowledged separation agreement for a period of at least one year.

Countless commentators have expressed dismay at the failure of New York legislature to bring New York's divorce laws out of the 19th century. New York's antiquated fault-based divorce system enables any defendant in a divorce action to delay (and, in certain instances, block) the divorce process by seizing upon grounds as a defense. Under New York law, a divorce litigant may even demand a trial by jury on the issue of the grounds for divorce.

On April 16, 2007, Justice Robert A. Ross, in Nassau County Supreme Court, issued a decision that summarizes the profoundly negative consequences of New York's antiquated divorce law:

In all-too-frequent occurrence, matrimonial courts are faced with innumerable instances where efficacious resolution of economic issues and custody determinations are backseated and delayed by fault (grounds) trials. The party without resources to afford such litigation, or, the party who chooses not to aggressively allege the faults of his/her spouse, is often at a tactical disadvantage -- simply because an opposing party seeks to impose financial leverage or exacting personal animus, due to the current statutory scheme[.]

Molinari v. Molinari, Supreme Court, Nassau County (101728-05 (April 16, 2007).

In Molinari, Justice Ross describes the legislation currently pending in the New York legislature that would add irreconcilable differences as a basis for obtaining a divorce in New York. In what can only be described as a loud cry for the legislature to finally act on this issue, Justice Ross concludes with his ruling: he is holding his decision as to grounds in abeyance pending the legislature's action on the pending no-fault legislation (Bill A03027).

Unfortunately, within days after Justice Ross issued his decision, the New York Law Journal reported that "approval of such a bill [enacting no-fault divorce] was a longshot this year". NYLJ, April 19, 2007. Sadly, Justice Ross' call for action regarding New York divorce appears to have fallen on deaf ears. New York's legislature has once again lived up to its reputation as the most dysfunctional legislature in the nation.

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