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Wendy Emerson
/ Categories: By George H. Gray

"No Fault Divorce" 4 Years Later

Welcome to new friends, clients and current business associates.  

The summer of 2010 may be remembered as the “Historic Summer of Legislation” that will forever change how family law is practiced in New York State.  New laws became effective October 1, 2010 which represented the most major change to family law since the law of “Equitable Distribution” took effect in 1980.

Many are aware of the “no-fault” legislation that was passed in 2010; however, there were four other major changes to the law at that time.  This blog will highlight those areas of the law and future blogs will endeavor to review in detail the current status.

  • No-Fault Divorce - Before the “No-Fault” legislation was passed, couples at both ends of the economic spectrum had to address the issue of grounds.  The only version of “no-fault” divorce that was recognized in New York was “living apart pursuant to a Separation Agreement” (or Judgment of Separation) for one year or more.  Parties often used the fact that grounds would be difficult to prove in order to extract a more favorable settlement from the spouse who desired the divorce.  The remaining grounds were cruel and inhuman treatment, abandonment for more than one year or adultery. In many long-term marriages, the Judge was reluctant to grant a divorce unless serious physical violence existed.  The Judges based their reluctance on case law and precedent which provided that arguing, calling each other nasty names, staying out nights and the like was “typical marital discord.”  It was easy to “wink an eye” if both parties agreed that they desired the divorce and were able to resolve the financial and custodial issues; however, this was not always the case.  The new statute, Domestic Relations Law Section 170(7) requires one party to swear to the truth that the marriage has “irretrievably” broken down for six months or more.
  •  Counsel Fees - The statute is supposed to “equalize the playing field” so that the “monied” spouse will more likely be responsible for the attorney fees for the non-monied spouse.  The Court has discretion when deciding on a request and a Judge assigned to the case looks at all of the facts and circumstances involved.
  •  Temporary Maintenance Guidelines - This portion of the statute is provides a formula whereby the Court can issue an Order of spousal maintenance at least on a temporary basis, during the pendency of the action.  It is intended to prevent the non-monied spouse from not being able to live in a standard of living somewhat comparable to what the parties enjoyed during the marriage.  The formula is set forth in the statute, however, the Court may deviate from the fomula finding the result “unjust.”  The Court must consider who is paying the carrying costs on the marital home, for example and direct expenses for the children as well as medical insurance and the like.  In turn, the Court can “impute” income to a party who is either not working at all, part-time or at a level below their abilities.
  • ·Modification of Child Support - This section of the law requires, that unless the parties opt out, the Court can modify an Order made after October 13, 2010 when:
· Three years have passed since the last order was entered, modified or adjusted; o
 Either party’s income has changed by 15% or more; or
There has been a substantial change in circumstances.  This standard was always in existence and includes a change in the residential custody of the children and loss of employment, for example.  For loss of employment to be considered a ground for modification, the party must show that the loss of employment was involuntary and that there were diligent attempts to secure substitute, comparable employment.
  •  Orders of Protection -The provisions of both the Family Court Act and the Domestic Relations Law were modified to provide that a court “shall not deny an order of protection solely on the basis that the acts or events alleged are not relatively contemporaneous with the date of application.”  This was supposed to address the situation where a party may have waited for some period of time to request an Order of Protection and that would not be held against him or her.
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