New York Reconsiders No-Fault Divorce

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New York has not embraced no-fault divorce, a legal revolution that swept the country in the 1970s. Now that may be changing. New Yorkers, unlike most Americans, must show grounds for divorce. That may be about to change.

RENEE MONTAGNE, host:

On Friday's we talk about your money. Today we consider the financial, as well as the emotional, fallout from divorce.

New York is one of the only states that has not embraced no-fault divorce, the revolution that swept the country in the 1970s. Today, most states allow divorce if one person says the marriage is irretrievably broken. In New York, you generally still have to establish grounds, like adultery or cruelty.

That may be changing now, although some advocates for women say no-fault harms the party with fewer financial assts, and that's usually the woman.

NPR's Margot Adler reports.

MARGOT ADLER reporting:

Danny Flamberg is in marketing. Jane Shahmanesh is an attorney. They were once a married couple and they have one child. When you meet them today they're good friends, and they work cooperatively to bring up their teenage daughter. But you would never have suspected that if you'd met them during their long and bitter divorce.

Mr. DANNY FLAMBERG (Senior Vice President and Marketing Director, Digitas Europe): It started out like the North and South Koreans.

Ms. JANE SHAHMANESH (Attorney, McGuireWoods LLP, New York): That is really true.

Mr. FLAMBERG: And it stayed that way for…

Ms. SHAHMANESH: Two and a half years. No, more!

Mr. FLAMBERG: …at least two--at least. No.

Ms. SHAHMANESH: Margo, when we started divorcing, it was nasty and nastier. Because when you take two type A personalities, throw in a lot of money and a couple of, you know, high-end fighting issues, that leads to a very expensive and extremely long divorce.

Mr. FLAMBERG: We squandered our fortune on lawyers.

Ms. SHAHMANESH: You--there you got it.

ADLER: When asked if their situation would have been different if New York had no-fault divorce, Jane Shahmanesh says the lack of no-fault forced them to spend two years negotiating a separation agreement, then another year separated and waiting to file for divorce.

Shahmanesh says alleging adultery or cruelty would have been humiliating and embarrassing. The only alternative to going the fault route in New York is both parties agreeing to separate for a year.

Shahmanesh says she swore at the time she would join efforts to push for no-fault legislation. But she never did.

New York never joined the no-fault revolution that swept the rest of the nation, but sentiments are changing here; albeit slowly. A state matrimonial commission has recommended reform, and New York's chief Judge, Judith Kaye, has repeatedly said a New York divorce involves...

Justice JUDITH KAYE (Chief Judge, State of New York): Too much money, too much agony, too hard on children.

ADLER: Some of the old arguments against no-fault don't necessarily hold up. Social conservatives argued that easy divorces would mean more divorces. But economist Justin Wolfers, a professor of business and public policy at the Wharton School at the University of Pennsylvania, says, not so.

He's been studying no-fault divorce since it was adopted state by state: California in 1969, Massachusetts in 1975, and so forth. And he says, that while the divorce rate almost always increased the year no-fault was adopted, in most states, if you look at the data ten years later…

Professor JUSTIN WOLFERS (Professor of Business and Public Policy, University of Pennsylvania): The states that changed their laws look a lot like the states that didn't.

ADLER: In other words, the rise in divorce was short-lived. More recently there's been a different argument against no-fault taken up by feminist groups and people who work with victims of domestic violence.

They say no-fault divorce is not good for women with few financial assets. The New York Chapter of NOW, the National Organization for Women, says that alimony and property awards are lower in no-

fault states.

Julie Domonkos co-chairs the Lawyers Committee Against Domestic Violence. She says having to prove grounds gives the less powerful partner, usually women, a bargaining chip. Take a battered woman, she says, whose husband suddenly wants to leave and leave her high-and-dry.

Ms. JULIE DOMONKOS (Executive Director, Lawyers Committee Against Domestic Violence): And, the only chip she has to require this man, who probably controls all the finances, is to say to him, you don't have grounds against me, I have grounds against you. And the only way I'm going to give you this divorce based on grounds is if you make sure you have the money I need to support these children, the health insurance that I need that I could not afford on my own, and a variety of other, very often financial but sometimes child-centered things that she needs; and she's got that fault over his head because he doesn't have grounds to get a divorce against her.

Prof. WOLFERS: It's the right way of thinking about it. Who's getting the bargaining chip out of this?

ADLER: Economist Justin Wolfers says a woman whose husband becomes CEO and leaves her for a sweet young thing probably does need grounds. But another woman, who simply wants out of a marriage, may find no-fault the best remedy.

Wolfers also argues that states that changed to no-fault had declining rates of domestic violence, suicides, and the number of women murdered by their husbands.

Some New York groups, including women's groups, are now supporting no-fault divorce. The Women's Bar Association of New York is one such group.

Lisa Natoli, who co-chairs the Family and Matrimonial Committee of the organization, says today more women have their own assets.

Ms. LISA NATOLI (co-Chair, The Family and Matrimonial Law Committee of the Women's Bar Association of the State of New York): It's not that no-fault changed, it's that society changed.

ADLER: Natoli says if you eliminate a lengthy trial over fault, couples can focus on financial issues, child support, and custody issues, rather than spending time and legal fees on the divorce, itself.

Still, many people are saying, not so fast. Democratic Assemblywoman Helene Weinstein is sponsoring two reform bills. One, which has a good chance, would simply reduce the separation time from one year to three months for couples who do not want to accuse each other of adultery or other faults. The second bill would say, as other states do, that irreconcilable differences are a no-fault grounds for divorce. But the bill would also crate protections for the spouse with less money, including the right to an attorney and to health insurance.

Weinstein says New York has not been eager to abandon fault because the real issue is creating a system that is fair to all parties. When asked why New York has lagged so far behind other states, she replies…

Assemblywoman HELENE WEINSTEIN (Democrat, New York): Just because we're the only one doesn't mean we're not bright. Sometimes by being the only one not having something, you can see the experience in other states.

ADLER: And the experience of divorce has not been good for women, she says. Which is why, for all the discussion about liberalizing New York's divorce laws, reform may continue to be slow.

Margot Adler, NPR News, New York.

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