No Fault Divorce in New York?

Chief Judge Judith Kaye has called for New York to implement no fault divorce. Here’s an article on the story from the New York Times (free registration required). Kaye leads the New York Court of Appeals, its highest court, and therefore its judiciary. She called for the change in her annual “State of the Judiciary” speech.

New York is one of the few remaining states that requires divorcing couples to demonstrate that one of them is “at fault” — a requirement that often exacerbates the tension between divorcing spouses. The law is held in place, according to the Times, “by years of opposition from some women’s rights groups, the Catholic Church, legislators, and others who believe that easier divorces and quick settlements might harm one spouse – often women – who have historically earned less money or have not worked outside the home.”

In her address, Kaye said this:

After long and careful reflection, I, too, have come to see that requiring strict ‘fault’ grounds may well simply intensify the bitterness between the parties – wasting resources, hurting children, driving residents to other states for a divorce and delaying the inevitable dissolution of the marriage.

I can address that “driving residents to other states” point myself. I regularly handle uncontested divorces from couples where both spouses are physically living in New York (and who normally would file for divorce there). Instead, one of them works to establish residence in another state (in my case, Alabama) so that they can avoid the bloodbath forced on them by the New York divorce law.

It doesn’t happen every day, but it happens often enough that I have to believe that it distorts divorce statistics. That is, New York’s requirement of proving fault is probably keeping its perceived rate of divorce artifically low and keeping the divorce rate artificially high in other states like mine.

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