As discussed at length in a previous post ("Is No-Fault Divorce a Good Thing? It may soon be the law in all 50 states."), pending legislation in New York would create a no-fault divorce statute in that state. Until recently, New York was the last state which still did not have a no-fault divorce option (without a significant waiting period).

The signing of the new law by Governor David Paterson has now brought New York up to date with the status of divorce law in the other 49 states. To read more about the new New York law read "No-Fault Divorce Signed into Law in New York" which also contains the text of the law.

Review our previous post for discussion of the many benefits of no-fault divorce.

At Kelsey & Trask, we like to tell our clients that we assist them in the process of transitioning from one chapter in their lives to the next. In the context of divorce, this transition for many is emotionally difficult. At times, there is often the urge to lash out at one's soon-to-be former spouse, and many people are drawn to the concept of "winning," or righting a wrong.



There are very few pure victories in Probate & Family Court. The nature of the legal process of getting divorced is incomparable to a criminal trial, where a defendant is found guilty or not guilty, or a civil trial, where a defendant is found liable or not liable. I have often explained to clients that "divorce court is not like the television show by the same name." Just because there is a judge does not mean that your worth as a husband or wife will be judged; no "winner" will be announced.



The evolution of no-fault divorce was meant in part to prevent having a courtroom regularly host the high-emotion conflict that one might see on "The Jerry Springer Show" or "Maury." Divorce court is disappointingly unsupportive for those looking to air their grievances against their former mate.



There are certainly instances where cases are litigated in a way that exposing the skeletons in a soon-to-be former spouse's closet is necessary. However, it is important to realize that the system of divorce court is ill-suited for emotional healing. It is designed to divvy up what the couple has and set up a plan for the children, if any, without diving into the psychology of the individuals involved unless the situation requires it.



As stated in a recent post , we wrote about how some emotional issues that arise during the divorce process are better suited for a specialist than an attorney, and we often refer our clients to someone with more training in the appropriate field.



It is important to realize that divorce court's shortcoming as a psychological healing forum means that often finalizing a divorce does not mean the end of the emotional aspect of breaking up. More times than not there is at least some residual bitterness and negativity, and dealing with these emotions at some juncture is necessary. While we at Kelsey & Trask will do everything that we can to assist in handling the legal transition, we are glad to be able to point you in the right direction if additional support would be helpful.

According to a New York Times article, the New York State legislature recently approved legislation that would allow No-Fault divorces in New York. The state of New York is the last state that still requires one spouse to have committed a wrong (or at least to take the blame) for the dissolution of a marriage.

Many, including the Roman Catholic Church, oppose the change because they believe it will raise the divorce rates in New York. Interestingly, the divorce rates in New York, though low compared to all 50 states (ranking 33rd), are still higher than a state like Massachusetts where No-Fault Divorce has been the law for more than thirty years (3.4 per 1000 people per year in New York vs. 2.5 per 1000 people per year in Massachusetts according to StateMaster.com).

If No-Fault divorce doesn't cause a rise in divorce rates, then what is the impact?

According to a New York Times op-ed column, there are potential advantages a. The advantages include an 8-16% reduction in wife's suicide rates and a 30% reduction in domestic violence (according to a University of Pennsylvania report by economists Betsey Stevenson and Justin Wolfers). In addition, the ability of one participant to end the marriage can change the bargaining power in the relationship causing both partners to change how they view the marital relationship. This could cause either party to invest less in the marriage, or could cause both parties to be more attentive to unhappiness in the marriage.

A valuable impact of allowing no-fault divorce, though, can be the ability of more couples to use mediation. Because neither party needs to accept fault, they are more likely to try and work out their differences with a mediator than litigate their case. Increasing the number of mediations could be the single-most positive impact of no-fault divorce, because, as one study found, mediation increases the likelihood of settlement, improved co-parenting relationships between parents, and improved the relationship of non-custodial parents and their children.

Sounds like it's about time New York joined the other 49 states in offering a No-Fault option.

A recent Op-ed article in the New York times, entitled No Fault of Their Own, suggests that we should change the way custody decisions are made to minimize litigation and fighting over children. The author notes that custody battles, that leave the issue of what is in "the best interest of the child" to the Judge to decide, often result in trials over who is the "better" parent.

This is a valid point. The damage that these types of battles can cause to children warrants a different approach to family law than to the practice of other types of law. While zealous advocacy for a corporate client whose vendor screwed them on a contract might necessitate a trial or dictate destructive cross-examination, in family law this type of litigious approach hurts children.

I often explain to my clients that it is not constructive when they form their view or their goals in a divorce case with a negative comment about their ex-spouse. I want my clients to tell me what their life looks like in five years, so together we can figure out how to get them to that goal, not what they "deserve" to receive from their ex-spouse. I believe this is the point of no-fault divorce.

Similarly, I like the concept of No-Fault custody. I want my clients to tell me what is best for their children, by telling me about their children's schedules, and activities and friends. Telling me what a bad parent the other person is, doesn't describe what is best for the child. In fact it's simply a waste of time unless that parent is so bad that they are unfit.

The author of the op-ed article concludes that mandatory mediation or amendments to the way child support is calculated could help move the system towards No-Fault custody. I believe that regardless of whether couples mediate, or what the child support is, common-sense is the key to resolving custody battles. 99% of custody disputes can be solved by parents, and attorneys, who are willing to set aside the fight, participating in an open an honest four-way conference (with or without a mediator) about what is actually best for the child with reference to the child's needs and activities and schedule.

I don't know if No-Fault Custody is something the state can legislate due to the need for the law to protect against the truly un-fit parents. But I do know that less children would be harmed by divorce if more attorneys and more parents would practice No-Fault Custody.

For more information about proposed resolutions of co-parenting issues, please read our Custody page and the Association of Family and Conciliation Courts brochure: Planning for Shared Parenting: A Guide for Parents Living Apart.

The Texas GOP in releasing their 2010 State Republican Party Platform have raised considerable amount of controversy over their ultra-conservative positions on criminalizing gay marriage, regulating school teaching of alternate theories to evolution, banning pornography, and other issues.

Included in the Platform is also an "urging" that the Texas legislature rescind no-fault divorce laws stating "We believe in the sanctity of marriage and that the integrity of this institution should be protected at all levels of government." Not surprisingly, the Texas GOP has joined the Catholic Church here by claiming that no-fault divorce is an attack on the "sanctity of marriage."

The Catholic Church recently claimed that allowing no-fault divorce in New York would raise the divorce rates in New York. Interestingly, the divorce rates in New York, though low compared to all 50 states (ranking 33rd), are still higher than a state like Massachusetts where No-Fault Divorce has been the law for more than thirty years (3.4 per 1000 people per year in New York vs. 2.5 per 1000 people per year in Massachusetts according to StateMaster.com).

The disconnect in this argument stems from the faulty assumption, of both the Texas GOP and the Catholic Church, that making it harder to get divorced and protecting the sanctity of marriage is the same thing. But they are not the same thing. Protecting the sanctity of marriage should be about raising the quality of marriages, about educating people before they get married, and even about saving people from bad marriages. Does forcing a victim of domestic violence to go through a harder process to escape his/her abuser protect the sanctity of marriage or give marriage a bad name?

Making it harder for people to obtain divorces doesn't lower divorce rates, but it does increase domestic violence, crowd courts, and discourage mediation. How do any of these consequences protect the sanctity of marriage?