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Fault-based divorce in New York: Does it still exist and how often is it used?

New York was infamously the last state in the union to institute a regime of divorce law that did not require one party to prove the other was “at fault” in some way in order to obtain a divorce. New York didn’t get around to doing this until 2010. The story of how it finally happened, and the diverse assortment of those opposed to no-fault (primarily, the Catholic Church, some women’s advocacy groups, and the divorce bar), is an interesting one, and I would recommend reading through the New York Times article linked above.

To understand why this change in New York divorce law was so radical, and why it was opposed by so many powerful groups and supported by so many others, first understand what it was like to try and get divorced in New York prior to no-fault being enacted.

Before 1966, there was one sole way to get divorced: accuse your spouse of adultery and prove it in a court of law. Yes, adultery was the only allowable ground for divorce. This led to verdicts in which a court would consider two spouses claiming adultery against each other, and decide: sorry, neither of you proved your case, and you must stay married. Imagine that awkward car ride home. In other cases, men hired women to play the part of a mistress in a court of law, with one industrious gal who made this a profession receiving “8 to 10 dollars per case” for her services (albeit receiving such funds “wearily”). You may recall another way around this dilemma from the TV show Mad Men – when Betty Draper wanted a divorce from Don, she moved to Nevada for 8 weeks to obtain residency there. Just as Vegas now functions as the quickie-marriage capital, Nevada’s lax divorce laws led to the state’s status back then as a quickie-divorce mecca.

1966 brought some reform, opening up the grounds for divorce to include cruel and inhuman treatment, abandonment and a spouse’s imprisonment for three years or longer. While this liberalized the divorce process somewhat, it still required a judge to find fault with one party or another. There are two major consequences to a legal regime like this: one, it is possible that a court could deny couples a divorce, if fault is not proven; and two, it immediately puts the parties in strict opposition, without regard to whether the two agreed on the need to divorce. At the end of the day, even if husband and wife were on the same page, someone still had to prove something pretty bad about the other person, and the proof had to hold up in a court of law.

Starting with California in 1969, states gradually began instituting so-called “no fault” regimes, in which either spouse could file for divorce without having to prove fault on the part of their partner. By 2010, 17 states had done away with fault-based divorce completely. Three states had limited no-fault divorce to instances in which both parties agreed to the divorce. And New York sat alone at the bar, the sole state to demand that parties prove fault before divorcing.

With that context in mind, perhaps the advocacy groups mentioned above start to make a bit more sense. The Catholic Church simply did not wish to make it easier for couples to divorce. Divorce lawyers, perhaps cynically or perhaps altruistically, felt that good lawyering of a contested case improved the outcome for their client (and it didn’t hurt that contested cases created more legal fees). The most interesting opposition came from women’s rights groups – as this circa-2010 Jezebel blog post shows, there was concern that women who suffered from domestic violence would not be able to tell their stories to a court, and concern that women (who were and are more often the less-monied spouse in a marriage) would lose the “fault” bargaining chip to their detriment.

Despite this opposition, no-fault passed, and now, New Yorkers need only state under oath that their marriage has suffered an “irretrievable breakdown,” a charge that cannot be contested by the other spouse and need not be proven. Nowadays, fault-based divorces in New York are rare, though they do still happen. I couldn’t find any statistics on fault v. no-fault divorces (nor do I think such statistics are kept), but a search through legal databases reveals very few cases dealing with fault-based law in recent years. That said, speak to any long-time divorce lawyer and they will most likely have a case or two, some from recent vintage, that involved a fault-based divorce, and probably one with a fairly dramatic fact pattern.

So yes, fault-based divorce still exists in New York, with the grounds being adultery, cruel and inhuman treatment, and abandonment. However, given that only in very rare and extreme cases do allegations of fault have any bearing on the substantive financial settlement of a divorce, they are rare. Despite the previous misgivings of the divorce industry, I would venture to say that most family law attorneys are now grateful that no-fault divorce exists, even if only for selfish reasons: sometimes, it’s a relief to have a case where everyone can just agree.

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