New York’s No Fault Divorce and Temporary Maintenance Rules Revisited

Though divorce filings are up on Long Island since the New York’s no-fault divorce law took effect 17 months ago, the law is having its intended effect; couples are concentrating on the financial and child custody issues rather airing their dirty laundry in grounds trials.

According to Newsday, the number of new divorce cases in Nassau County increased by 6% last year compared with 2009, the last full year under the old law. In Suffolk County, divorce filings increased by 9%.

In a no-fault divorce, a spouse can simply claim a marriage has "irretrievably" broken down for at least six months before filing for divorce. Prior to New York’s adoption of no-fault divorce, a spouse was required to allege and prove, at trial, if necessary, grounds such as abandonment, adultery or cruel and inhuman treatment.

A law, enacted at the same time as no-fault divorce, to provide guidelines for temporary maintenance has been more problematic.  The formula, which sets guideline to award temporary spousal maintenance based on the spouses' incomes, fails to address how to deal with household expenses such as mortgage and utility payments.   Revisions to the law are slated to be introduced sometime this spring.

Ironically, as Newsday reports, advocates for the victims of domestic violence, who were among the biggest critics of no fault divorce, have grown to embrace it.

Advocates for victims of domestic violence have been won over by the no-fault law. They originally opposed it because they felt the history of abuse might not be factored into divorce settlements. But as it turned out, judges are much more likely to quickly award support and attorney fees that make it possible for women to leave an abusive home and get adequate legal representation, they said.

Though no fault streamlined the divorce process, the temporary support guidelines are a mess.  Rumor has it that the revisions will include guidelines for post judgment maintenance as well.    Rather than speculate as to the “fixes,” we will just have to wait and see and hope that the cure is not worse than the disease

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