Our New York State Legislature, unable to do their basic duty to pass a budget, has turned instead to real mischief — they are going to dishonor marriage by passing a so-called “no-fault divorce” bill. The Senate passed it today (by one vote), and the Assembly is expected to follow suit soon.
New York is the only state in the nation that does not yet have a “no-fault divorce” law. Divorce is always a tragedy, but sometimes it is necessary to protect the well-being of a spouse or children. But it shouldn’t be easier to end a marriage than it is to get out of a cell phone contract.
Essentially, this “no-fault” bill will establish a new ground for divorce — all you need is for one spouse to swear under oath that the marriage has been “broken down irretrievably” for a period of six months. In essence, you could just run down to the corner drug store and swear before the notary that your marriage isn’t working, and that’s the end of it.
This utterly fails to respect the importance of marriage to individuals, families, and society. Unilateral divorce by ambush would be permitted and even encouraged by this law. There is no standard for determining what’s “broken down irretrievably” – it is an entirely subjective standard that is based entirely on the attitude of the spouse who wants to end the marriage. There is no requirement of mediation or counseling to stave off an unnecessary divorce. And there’s no waiting period before the divorce is granted, which doesn’t allow for a “cooling off period” for reconciliation. That’s important, because many people have regrets about their divorce, and many couples reconcile during the process. Even worse, there is no consideration for the best interests of the children in dissolving the marriage, or any requirement that they receive counseling.
The “no-fault” approach completely turns the law on its head. Marriage will be the only civil contract that can be breached for any reason at all, with no demonstration of fault, and no damages to the injured party. This makes the marriage contract less worthy of protection (and easier to get out of) than mere economic contracts (e.g., a cell phone contract or a real estate lease). This also gives an unfair advantage to a wrong-doer (e.g., the spouse who abandons the other, or an adulterer). This is contrary to the traditional legal “clean hands” doctrine, under which you can’t ask for relief from the court when you have committed misconduct.
Contrary to what its advocates claim, “no-fault” divorce will not eliminate conflict from the domestic relations courts. Because the legislation permits divorce by ambush, an innocent party can be blindsided by a wrong-doer — not only will that fail to eliminate conflict, it will make it worse. And the bill does nothing to reduce disputes over any of the other key issues at play in a divorce — maintenance, child custody and support. These will still have to be resolved by the courts, and because the innocent party is treated so cavalierly, the level of conflict over these issues will likely increase.
Of course, there are parties to the divorce whose interests will be well-protected by our Legislature — the lawyers. Alongside the “no-fault” bill, they will also pass a bill that ensures that legal fees are paid by the more wealthy party to the divorce. So, the psychological and social well-being of kids — not so important to our solons. But the economic health of lawyers? That will be fully protected.
Once again, our New York State government has lived down to expectations. This time, instead of just passing bad economic legislation, they’re dishonoring the foundation of society itself — marriage and the family. Shame on them.
UPDATE — In an extraordinary example of incompetent journalism, the Times led its story on the bill today by stating that the Senate “approved legislation that would permit couples to separate by mutual consent…” Sorry, that’s not even close. New York already has a method by which couples could end their marriage by consent — it involves a formal separation agreement, or just not contesting the grounds for divorce (e.g., abandonment). This bill has nothing to do with mutual consent, and everything to do with empowering one spouse to try to get out of the marriage unilaterally. Don’t they have editors at the Times, or reporters who can read legislation?