Enacts the "Divorce Reform Act of 2010"

The opening paragraph of paragraph a of subdivision 6 of part B of section 236 of the domestic relations law is amended to provide that the court shall award permanent maintenance, subject to modification, if a party seeking maintenance is unable to maintain the marital standard of living due to a number of factors, including the duration of the marriage, age, health, reduced or lost lifetime earning capacity, loss of health insurance benefits, or the needs of minor or dependent children.

The opening paragraph of paragraph c of subdivision 6 of part B of section 236 of the domestic relations law is amended to provide that failure to state in an agreement between the parties, or a court order, that the recipient's remarriage shall terminate an award of maintenance shall not prevent the termination of such maintenance.

Section 170 of the domestic relations law is amended by adding a new subdivision 7 which provides for the ground of irreconcilable differences, which is established by showing that there is no reasonable prospect of reconciliation.

After 12 months of living separate and apart there shall be a presumption of no prospect of reconciliation. It further provides that in the absence of a valid separation agreement the court shall not grant a judgment of divorce until all the economic issues between the parties, including but not limited to the distribution of marital property, spousal support and child support, and custody and visitation, have been decided by the court and incorporated into the final divorce decree.

Sections 237 and 238 of the Domestic Relations Law and section 438 of the Family Court Act are amended to provide for a presumption of counsel fees to a non-monied spouse.

Justification

New York State is the only state that does not have some form of no-fault divorce. New York is a fault state and a divorce can only be granted if a plaintiff alleges and proves one of the five grounds contained in Domestic Relations Law section 170. In the absence of a separation agreement, which both parties must agree to, a plaintiff can only get a divorce in New York if they allege and prove wrongdoing by their spouse. If fault can't be proven, a party will remain married notwithstanding the breakdown of the marriage. This bill adds irreconcilable differences as a no-fault ground for divorce. A party can simply allege that irreconcilable differences have arisen and there is no prospect of reconciliation. If a party pleads and proves these two elements a divorce would be granted. If a couple lives separate and apart for a period of one year, there is a presumption that there is no prospect of reconciliation. This ground will enable a party to obtain a divorce without proving fault, instead, the party will establish that the marriage is over and there is no prospect for reconciliation.

The Assembly Judiciary Committee held roundtable discussions on the issue of no-fault divorce in 2005 and 2006. Representatives of the bar with extensive matrimonial expertise participated in the roundtables.

The inability of individuals to obtain a divorce and the problem of litigants committing perjury to obtain a divorce were some of the problems discussed. Although there was no consensus on a no-fault divorce proposal, a consensus was reached that our divorce laws need reform. The present bill does not eliminate our fault grounds; rather it adds irreconcilable differences as a ground and thereby gives an individual an option to obtain a divorce without alleging fault. A party would only have to allege irreconcilable differences such that there is no reasonable prospect of reconciliation.

Domestic violence groups, as well as other advocacy organizations, have made it clear that no-fault divorce legislation must be accompanied by reforms in the areas of maintenance, and the awarding of attorneys' fees. If irreconcilable differences is going to be a ground for divorce, then it is essential there be a level playing field in divorce proceedings. To that end, this bill establishes a rebuttable presumption of attorneys' fees to the non-monied spouse. This will ensure that both parties are adequately represented in a divorce proceeding regardless of the grounds. This safeguard is necessary to mitigate any ramifications as a result of establishing irreconcilable differences as a divorce ground. Also, the bill provides for an award of permanent maintenance if a party is not able to sustain their same standard of living after the divorce as a result of age, health, reduced or lost lifetime earning capacity, loss of health insurance benefits, or the needs of minor or dependent children, where the amount of the order is sufficient to eliminate the disparity in the post-divorce standard of living of the parties. These changes enact positive reform of our divorce laws.

Legislative history

2009: A.2580-A/S.5667 - A. Judiciary/S. Judiciary 2007-08: A.3027 - A. Judiciary 2006: A.10440-A -A. Judiciary

Fiscal implications for state and local governments

None.

Effective date

This act shall take effect on the sixtieth day after it shall have become a law and shall apply to any action or proceeding commenced on or after such effective date.