Stateline Story

New York Wants a Better No-Fault Divorce Law

  • March 21, 2006
  • By Christine Vestal

New York lawmakers are considering reforms to state divorce laws that would make it easier for wedded couples to split up — a move all other states made in the 1970s.

But the Empire State may go from laggard to leader in divorce reform, legal experts say, because its lawmakers are considering first-of-a-kind proposals that would set guidelines for alimony and ensure that both spouses are represented by legal counsel in a no-fault divorce.

No-fault divorce laws have been criticized by women and family advocates for making it too easy for men to leave their wives, without providing adequate financial support.

The solution is not to avoid no-fault laws, but to "make a fairer allocation of economic assets when couples divorce," says Joan Williams, professor with the University of California Hastings College of Law.

If New York passes a no-fault law that sets clear guidelines for alimony and ensures legal counsel for both parties, it would be "groundbreaking," Williams said.

In most no-fault cases, people seeking alimony-post-marital payments to spouses for sacrificing their careers to raise a family or support their ex-partner's career-face an uphill battle, Williams said.

A coalition of New York lawyers has proposed the state become the first to set rules for alimony, recommending a formula similar to the one mandated by federal law for calculating child support payments.

New York tiptoed around the no-fault divorce issue in the past because opponents contended women would not be awarded fair alimony payments following the break up of a marriage if they lost the leverage of finding fault.

But because there was no easy way to split up in New York, the state's divorce courts became clogged with protracted divorce proceedings.

Earlier this year, the New York State Supreme Court stepped in, issuing a report calling on lawmakers to adopt a no-fault divorce law.

In addition to alimony guidelines and right to counsel provisions, the report urged lawmakers to consider requiring couples to seek mediation before going to court, providing special training for criminal justice employees, and offering marriage education classes.

In the last five years, many states have moved to reduce climbing divorce rates by requiring marriage education as a prerequisite to a marriage license. Three states-Louisiana, Arkansas and Arizona-passed so-called covenant marriage laws, allowing people to opt for a stronger marriage contract, including pre-nuptial education and longer waits in no-fault divorce proceedings.

Among the most ambitious state efforts, Oklahoma Gov. Frank Keating (R) in 1999 set aside $10 million in welfare funds for a marriage education project designed to reduce the state's divorce rate, which is among the highest in the country.

Likewise, Congress this year approved a Bush Administration marriage promotion initiative, allocating $1.5 billion to states governments and community organizations over the next five years to promote marriage and reduce divorce rates, primarily through educational programs.

Widely viewed as part of the Republican agenda, marriage education and stiffer divorce laws are not necessarily partisan issues, said John Crouch of Americans for Divorce Reform, a group that advocates for tougher divorce laws. His organization supports no-fault divorce, but recommends longer waiting-periods to allow couples a chance to reconcile.

Sociologist and economists say that divorce and single-parenthood disadvantage children and women and often result in poverty. To reduce welfare rolls, state welfare programs have long encouraged couples with children to stay together, and when that fails, they help single-parents get child support from ex-spouses.

"Recent studies demonstrate convincingly that while many adults claim to have benefited from divorce and single parenthood, most children have not… Every society requires a critical mass of families that fit the traditional ideal, both to meet the needs of most children and to serve as a model for other adults who are raising children in difficult setting," Hillary Clinton wrote in her 1996 book, It Takes a Village to Raise a Child.

In efforts to lower divorce rates, most states have taken an education and counseling approach, rather than making divorce more difficult, says Theodora Ooms of the Center for Law and Social Policy (CLASP), an advocacy group for low-income families.

Since the mid-1990s, every state has adopted at least one policy change designed to promote marriage and reduce divorce rates, according to a recent CLASP study- Beyond Marriage Licenses.

Thirty-six states have changed their welfare rules to treat one-parent and two-parent families the same and 19 states have set up separate state-funded programs, making it easier to provide assistance for married couples with children.

Federal rules require a higher work standard for married couples, making it difficult for them to qualify for welfare.

In nine states - Arizona, Arkansas, Colorado, Florida, Louisiana, Oklahoma, South Carolina, Texas and Utah-governors and other state officials have declared strengthening marriage to be a top priority. In general, states with higher-than-average divorce rates have been the most aggressive in adopting programs to strengthen marriage.

Massachusetts has the lowest annual divorce rate at 2.2 per 1,000 people, according to 2004 data from the National Center for Health Statistics. Nevada has the highest rate at 6.4 divorces per 1,000 people. New York's rate (3.0), like the rest of the Northeast, is lower than the national average.

Tags: Justice