More Calls for No-Fault Divorce in NY

For decades, the otherwise progessive state of New York has stood alone, requiring a finding of marital fault as a condition of divorce. You’ve already read here about efforts within the state to move to no-fault divorce. Now an appointed commission convened to study the state’s matrimonial laws has called for a fundamental overhaul of them – including a change to no-fault divorce.

You can read the 70-page report for yourself. Here’s what it says about no-fault divorce:

Substantial evidence, derived from the public hearings held by the Commission and the professional experience of the Commission members, leads us to conclude that fault allegations and fault trials add significantly to the cost, delay and trauma of matrimonial litigation and are, in many cases, used by litigants to achieve a tactical advantage in matrimonial litigation.

Receiving less coverage in the media is the commission’s call for changing the presumption in New York about joint custody. The state has employed a presumption that when parents have engaged in a bitter antagonistic custody fight, joint custody is inappropriate. The Commission calls for removing that presumption.

Following extended consideration and debate, the Commission concluded that no presumptions whatsoever should be created via legislation, case law or otherwise. This conclusion was reached in the hope and expectation that well-trained, competent judges would evaluate each individual case and each individual child’s needs without prejudice. Further, the conclusion was reached that a presumption of either joint or sole custody would be inconsistent with the optimal functioning of the judge.

The Commission also calls for early screening of divorce cases to help judges identify those cases that could settle quickly and those that could become lengthy and protracted.

The goals of identifying high conflict / problem cases early, matching families and parties with services and encouraging responsible self-determination by the parties as early as possible are largely attained by this screening. Screening would be conducted by court personnel and/or the judge with the judge retaining all authority and discretion with respect to final determinations of what track the case should follow, which services should be offered or ordered; generally, how the case will proceed.

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