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.

Whether or not everyone approves, it is a fact of life that the "traditional nuclear family" is becoming less the norm. In the practice of family law we are encountering more and more unique family structures; some brought on by the advance of technology (like artificial insemination or surrogate parenthood), some brought on by divorce and re-marriage creating step or second families, and some brought on by the changing laws around gay marriage and adoption.

There are situations in the law in which the Courts have already dealt with the issue of whether a non-biological parent could be a "Parent" as well. For instance, in Massachusetts there is a Grandparent Visitation Statute that provides for visitation for grandparents with their grandchildren if they have been significantly involved in the children's lives. Although this standard is strictly applied by the Courts, a win on a grandparent visitation case is essentially a recognition that a child's grandparent is acting as another parent in some capacity and it would benefit the child to continue that relationship.

Similarly, the Courts in Massachusetts have also recognized "de facto" parents in situations where another person (such as an aunt or uncle or step-parent) has been so involved in a child's upbringing that they have become indispensable in that child's life. The Courts have awarded "de facto" non-biological parents rights of custody or visitation (and sometimes obligations for child support) when it is found that that person has been such a large part of the child's life that it is in that child's best interest to maintain that relationship.

Within this framework, the Court has in the past recognized that third-parties can sometimes be indispensable in the raising of a child. Despite the complications that a third player in the custody/visitation arena can cause, the Courts have recognized in some situations it is more beneficial than cutting that person out of the child's life.

Similarly, this same logic is being applied in expanding how the court views parenting arrangements created by "non-traditional" family structures. As discussed at length in a recent Boston Globe Article, Johnny has two mommies – and four dads, this is becoming more common when lesbian or gay couples involve a third biological parent in the conception of the child.

Also discussed in the article is the opposition by some to the inclusion of any third or non-biological parents in parenting (despite the proven value of quality involvement by step-parents in many families). Of course, much of this opposition is just a thinly veiled opposition to any recognition of gay or lesbian rights as depicted in this news story video posted on the website of colleague Gabriel Cheong. As depicted in this news video and in this article, the law is struggling to catch up with how to categorize these different relationships despite the fact that we already have some precedent in how we deal with "de facto" parents.

In the news video the victim-Mother indicates that she was advised she didn't need to adopt her non-biological child because the law in Vermont recognized her parental rights under her marriage. Since all states don't recognize that marriage, though, it might have been more prudent for her also to adopt the child.

Even for parents in more unusual arrangements that involve three parents, some jurisdictions are now allowing third-parent adoptions.

The takeaway point from this struggle should be that until the law becomes clear in how it treats these relationships documenting your rights and agreements should be clear from the outset. No matter what your family structure is like, if it is "non-traditional" the law might be uncertain in how it treats you or require more "proof" of parental relationship. In order to protect your parental rights you should explore your options when everyone is "getting along".

Limited Assistance Represetation (also called "unbundling" or "LAR") is a program that allows a lawyer to provide partial services to a client, limiting the attorney's representation to only a specific matter while the client mangages the remainder of the case. On May 1, 2009, the Supreme Judicial Court issued a press release that LAR is now permitted in all trial court departments in Massachusetts.

In Famly Law, this often means that the lawyer either assists in the preparation of court pleadings, but doesn't go to court, or agrees to only go to court for specific events. Limiting services in this way allows for greater predictability in the amount of time an attorney might spend working on your case. This predictability allows us to provide a flat fee for many family law related services.

The LAR program is an exception to the normal rules, in which attorneys file unlimited appearances and "ghostwriting" is frowned upon. Under the LAR program, "ghostwriting" (writing pleadings on behalf of a client who will present them without counsel) and limited appearances are permitted by the Supreme Judicial Court to give more parties the opportunity to have legal advice even if they cannot afford an attorney for their whole case.

The program requires that attorneys participate in a training for LAR in order to be eligible to provide these limited services. Attorney Kelsey participated in the required LAR training at the Norfolk Probate & Family Court, when LAR was only a pilot program, before it was expanded in May 2009, and is therefore certified to practice LAR. Contact us for a free one hour initial consultation to learn more about LAR and the flat fee services that we offer.