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July 28, 2005

Thoughtful no-fault revisited

By Julie A. Domonkos and Catherine J. Douglass

On February 24, 2005, our prior article entitled "Thoughtful No-Fault" appeared in this journal's column. In it we addressed the ongoing debate on no-fault divorce legislation in New York State. We articulated concerns of many domestic violence advocates about the version of no-fault divorce legislation that had been proposed by some lawyers and bar associations.

"We aimed to insure that, if the Domestic Relations Act is ammended, the changes are meaningful for litigants from all economic strata, for the poor and rich alike."   

We noted that, once no-fault divorce is possible, the statutory requirement for grounds can no longer be used as a bargaining chip by battered women whose abusers want a divorce but are unwilling to give their victims custody of the children or fair equitable distribution and support.

On the other hand, we acknowledged that no-fault divorce could well benefit other battered women who need a simple and expedited way out of an abusive marriage. On behalf of the Lawyers Committee Against Domestic Violence (LCADV), which we co-chair, we undertook in our prior column to "propose a fairer version of no-fault that deals with the inequities caused in large part by the lack of access to competent matrimonial counsel experienced by spouses with lesser resources."

Since then, members of the LCADV with matrimonial expertise—lawyers who for many years have represented indigent and working-poor domestic violence victims in divorce actions—have met to develop a package of matrimonial reform initiatives. Our collective wisdom is reflected in the proposal we now advocate—a legislative reform package with three essential and interrelated components. We aimed to ensure that, if the Domestic Relations Law is amended, the changes are meaningful for litigants from all economic strata, for the rich and poor alike.

First, we propose a streamlined no-fault divorce statute that eliminates the need to establish grounds, providing instead three new possible no-fault avenues for divorce: irretrievable breakdown of the marriage, living separate and apart for one year, and consent of the parties. Our bill requires the resolution of both economic and child custody issues before the divorce judgment can be granted.

Second, we advocate for a limited, but absolutely critical, right to appointed counsel for some divorce litigants. Currently, there is no right to counsel for indigent parties in matrimonial actions. As noted in our earlier article, the lack of access to counsel means that the most vulnerable litigants, those without financial resources, cannot adequately negotiate for the essential protections that our complex matrimonial laws and procedures should, but too often do not, afford them. Mindful, however, that the creation of a right to counsel will cost money, our bill provides for a limited right to free legal representation only in those cases where one party to the action has or could afford counsel and the other cannot. It is our belief that these imbalanced cases, where the monied spouse has competent representation and the non-monied spouse has none, are the most ripe for unfair outcomes.

The third bill in our matrimonial reform package is designed to bring predictability, consistency and fairness to maintenance awards. It contains guidelines for determining Post-Marital Compensation, a new name chosen to better reflect the true nature of what is now termed "maintenance." Post-Marital Compensation must be seen as an entitlement to be awarded at the time of divorce, an award that recognizes the recipient's contribution to the marriage partnership. The Child Support Standards Act is the model for our bill, and we use its defined terms. Any child support obligation is reached after the amount of Post-Marital Compensation is determined. Post-Marital Compensation is calculated after taking into account the impact of equitable distribution on each former spouse's future income.

Under our proposed bill, whether one spouse will pay Post-Marital Compensation to the other and, if so, for how long is determined by two simple formulas. The first formula calculates the amount—30% of the higher income spouse's income minus 50% of the lower income spouse's income. Under this formula, there is no Post- Marital Compensation award unless the income of the lower income spouse is less than 60% of the income of the higher income spouse. So, for example, 30% of a husband's $70,000 income (i.e., $21,000) minus 50% of a wife's $42,000 income (i.e., $21,000) results in zero; therefore, no Post- Marital Compensation award ensues. In the case where the husband's income is $70,000 but the wife has no income, the formula awards her Post- Marital Compensation of $21,000.

The second formula determines the duration of the Post-Marital Compensation award. The basic premise is the longer the marriage, the longer the Post-Marital Compensation, if any, will last. So, for short marriages of up to five years, the formula calls for Post-Marital Compensation to be awarded for 35% of the length of the marriage (e.g., for a three-year marriage, a one-year award), whereas for lengthy marriages of more than 20 years, the formula calls for an award to last 75% of the length of the marriage (e.g., for a 28-year marriage, a 21-year award).

Again drawing from the familiar Child Support Standards Act, our Post-Marital Compensation bill provides a list of nine factors that would allow judges to deviate from the results of the two formulas where they determine that the formulas produce inappropriate or unfair results. Among these factors are the age and health of the parties, the wasteful dissipation of marital property by one of the parties, and the availability and cost of medical insurance for each of the parties.

With no statutory guidelines for maintenance, judges' decisions now are highly discretionary. They vary widely, even when cases present substantially similar fact patterns. At present, attorneys can give their clients no assurance about whether they will owe or receive maintenance and, if so, how much and for how long. We believe that our Post-Marital Compensation statute will bring fairness, consistency and predictability to an area of the law that greatly needs it. The very existence of statutory guidelines will foster settlements, creating efficiencies for parties and courts. A number of matrimonial practitioners who represent wealthier clients have already indicated to us that they welcome this proposal, as maintenance is a major source of frustration for them and their clients, no matter how substantial their income.

The LCADV believes that our matrimonial reform package lives up to Chief Judge Kaye's admonition that any no-fault proposal must "scrupulously safeguard the interests of the most vulnerable litigants—especially the already disadvantaged poor and victims of domestic violence." We are pleased that the process of evaluating whether and how New York should adopt no-fault divorce has so far proceeded slowly and carefully, with no hasty or ill-advised quick fixes. We have presented our matrimonial reform package to judicial and legislative leaders, as well as to the statewide Matrimonial Commission created by Chief Judge Kaye and to private matrimonial practitioners. We are encouraged by their responses to date and look forward to further feedback. Copies of our draft bills and explanatory memorandum are readily available.

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.