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Perspective
February 24, 2005

Thoughtful no-fault

By Julie A. Domonkos and Catherine J. Douglass

In her annual State of the Judiciary address, delivered on February 7 in Albany, Chief Judge Judith S. Kaye addressed the move to bring about a major change in New York's divorce law. While supporting in general the desirability of adding a no-fault option to New York divorce law, she cautioned that this legislative change cannot take place without "scrupulously safeguard[ing] the interests of the most vulnerable litigants—especially the already disadvantaged poor and victims of domestic violence."

  The need to prove fault often is the only bargaining chip a battered woman with no financial resources has to get custody when her husband wants a divorce but can't prove fault against her. 

This latter phrase, overshadowed by the news of Judge Kaye's support for some form of no-fault, encapsulates the view of many domestic violence lawyers that simply adding a no-fault ground, without examining other aspects of matrimonial actions, will exacerbate injustices that happen with regularity to domestic violence victims in the courts. We applaud Chief Judge Kaye's appreciation for the complexities that must be addressed in any no-fault legislation.

Many matrimonial lawyers and some bar associations and judges now support a change to permit no-fault divorces under New York law. The initial proposal they have endorsed would allow a husband and wife to divorce if they have lived apart for a year, if there are irreconcilable differences, or if they consent under oath to the divorce. Advocates of this proposal provide a variety of arguments, both practical and emotional, suggesting that it will benefit individuals and society. In short, they argue that no-fault divorce will reduce the financial and emotional costs of divorce, and that spouses will no longer have to cast blame on each other for the failure of the marriage, exaggerate the terrible events that occurred during the marriage, or move to a more divorce-friendly state in order to get a divorce.

The supporters of this change in the law may well be right with respect to individuals represented by experienced matrimonial lawyers during their divorce actions. However, they fail to acknowledge that this change will put at serious risk the future financial and physical well-being of many spouses—still women much more frequently than men—who are without financial resources or who are victims of domestic violence. Spouses without the financial resources to hire competent counsel already find it hard to defend their rights in divorce actions. This is an issue that has been raised emphatically before the Matrimonial Commission charged by Chief Judge Kaye to review the state of matrimonial practice and make recommendations for change.

The no-fault proposal under discussion will do nothing to address the problems faced by these individuals, and for many litigants it will exacerbate them. For example, sometimes the need to prove fault is the only bargaining chip a battered woman without financial resources has to secure child custody, safe visitation arrangements, health insurance or some share of the marital finances when her husband wants a divorce but cannot prove fault against her.

As Chief Judge Kaye pointed out, no-fault divorce legislation should not be adopted unless it includes concrete protections for these vulnerable groups of litigants. Otherwise, they will be uninformed about the law, inadequately represented, and unable to negotiate financial and related protections for themselves and their children. The current power imbalances will be further tipped against battered and poor women, increasing the losses in their and their children's lives brought about by divorce.

The granting of divorce does not occur in a vacuum. The critically important issues of child custody, the division of the family's financial resources, and the economic future of each member of the family must be resolved. The current no-fault proposal does not state how these issues will be resolved as the request for a judgment of divorce is pending. (It merely states that they must be resolved before the divorce judgment can be entered.) Any legislative scheme to be adopted must ensure that these issues are fairly handled, with the litigants having as close to equal bargaining and litigation power as possible, before a no-fault divorce is granted. This raises many of the issues with which the Matrimonial Commission has been asked to grapple by those testifying before it, among them, access to legal services for the poor and working poor, immediate interim counsel fees, and equal access to marital resources for both parties while their divorce case is pending.

This may also be the time for New York to join other states in enacting maintenance standards. Just as in the area of child support, there should be more predictability and fairness in how maintenance is awarded. These standards should be simple and straightforward and include factors for deviation, such as domestic violence severe enough to impact the battered spouse's future earnings potential.

Consider the following two examples of what married individuals stand to lose unless the change to permit no-fault divorce includes specific protections for spouses without access to financial resources:

First, a 20-year marriage during which the wife bore primary responsibility for raising the children. Throughout the marriage, the husband held a job that provided family health insurance coverage. The wife, a diabetic, is now seriously disabled and requires expensive on-going medication and treatment. There are no grounds for the husband to obtain a divorce under New York law, but life with a disabled wife holds no appeal. If the law allows this husband to move out and obtain a no-fault divorce, the wife risks losing the essential health benefits his insurance policy provides, benefits she is unlikely to be able to replace.

Second, consider a one-year marriage in which the husband has brought his foreign-born, non- English-speaking wife to the United States, kept her in isolation, and severely abused her. She has Page 2 www.inmotiononline.org been courageous and fortunate enough to find her way to a domestic violence agency, seeking to escape. Even with the clear ground of cruelty upon which to get her divorce, she will need an experienced lawyer to assist her in negotiating or litigating a viable exit from this marriage—a court order providing her with safety from the abuser and enough financial support from him so that she can avoid becoming homeless, learn English, and find a route to self-sufficiency.

Lawyers at legal services and domestic violence agencies are guardedly optimistic that the time is ripe for positive change in New York's divorce law. We, and many colleagues, are eager to contribute to such change. In the coming months, the Lawyers Committee Against Domestic Violence, which we co-chair, will propose a fairer version of no-fault divorce that deals with the inequities caused in large part by the lack of access to competent matrimonial counsel experienced by spouses with lesser resources. We will speak for spouses—such as domestic violence victims—with perhaps the most critical need for a revised law and a fairer process. We will try to do what Chief Judge Kaye said must be done—ensure that any legislative change gives these litigants a fair opportunity on a level playing field to exit a failed marriage with a reasonable chance to build positive futures for all members of the family.

We acknowledge that a well-thought-out amendment to our current divorce law can increase the possibilities of positive outcomes for both men and women of all economic strata. However, a hastily conceived change in the law has the potential to reinforce and even exacerbate existing power imbalances in marriages, leaving a former spouse with few economic resources even worse off.

Julie A. Domonkos is executive director of My Sisters' Place, Inc., in Westchester County and Catherine J. Douglass is executive director of inMotion, Inc., in New York City. Together they co-founded and co-chair the Lawyers Committee Against Domestic Violence, based in New York City.