New York's No-Fault Divorce And You

June 23, 2011 - PRLog -- The passage of no-fault divorce in New York has been a welcome development to those seeking a more simplified process for marriage dissolution. New York divorce lawyers caution, however, that legal pitfalls and obstacles still remain, confronting the legally unprepared with potential problems along the way.

Everyone is familiar with the popular reasons for getting a divorce: he cheated on me, she has a gambling problem, he is annoying, it’s part of our contract since we are celebrities, and so on. If you live in New York, none of these reasons for divorce really matter anymore, since the state has recently adopted a no-fault divorce policy.

New York divorce attorneys Macron and Cowhey point out that New York no-fault divorce means that a couple need not prove any instances of wrongdoing or abuse in order to file for divorce in a court of law. New York is the last state to adopt this stance, which officially makes our nation a “no-fault divorce nation”. This is one of the rare instances in which all 50 states show some sort of uniformity on an issue.

Previously, couples that wanted a divorce in New York without proving fault had to be separated for at least one year before becoming eligible to file. Under the new law, which took effect in October, spouses are allowed to terminate their marriages within a period of six months after declaring that their marriage is “irretrievably” broken down.

Among the arguments against New York no-fault divorce are that it leads to higher divorce rates, and that it does not provide equal bargaining powers with respect to gender. Proponents usually argue that fault-based divorce leads to perjury in court when spouses create excuses for divorce. Like any family law issue, the debate over fault versus no-fault divorce is a very heated one.

The new law was passed in tandem with two other companion bills, which address the various factors that judges can use in determining maintenance.

Macron and Cowhey observe that, when no-fault divorce came to New York, it was supposed to end the need for grounds trials. Fault trials are universally viewed as time consuming and needlessly expensive; no fault divorce was supposed to be the cure for this situation.

When enacted, it was assumed that the allegation that “the marriage had irretrievably broken down with no prospect of reconciliation,” would create an presumption that would, in essence, establish the ground for divorce, completely eliminating the need for a grounds trial.

However, in Strack v. Strack, an upstate New York judge ruled that because the new law does not explicitly abolish a right to trial in a divorce action, a party is entitled to a trial to determine whether a breakdown of a marriage is irretrievable.

“…This Court does hold, however, that whether a marriage is so broken that it is irretrievable need not necessarily be so viewed by both parties. Accordingly, the fact finder may conclude that a marriage is broken down irretrievably even though one of the parties continues to believe that the breakdown is not irretrievable and/or that there is still some possibility of reconciliation.”

The lesson here is that New York divorce attorneys are still an essential part of the process and should be consulted to avoid issues and possible litigation later.

Visit http://www.legalsolutionsny.com for more details.

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A divorce is the legal dissolution of a valid marriage. A divorce gives each spouse the legal right to marry someone else. Additionally, a woman who took her husband's last name will be able to resume her maiden name. A divorce also involves a distribution of the couple's assets and debts, as well as a determination of issues pertaining to the care and custody of and visitation with minor, unemancipated children of the marriage, child support and spousal support. If domestic violence is a problem in the marriage, you may seek an order of protection.