New York's No Fault Divorce Law Takes Effect
October 12, 2010
Long awaited by NY divorce lawyers and litigants alike, it is anticipated that the no fault ground for divorce will lessen the time, expense, and emotional challenges associated with divorce in New York.
The text of the no-fault legislation makes specific reference to the unacceptable and unnecessary difficulties that were long encountered by New York residents under the New York's fault-based divorce system. Under the new NY no fault divorce ground, individuals seeking divorce need not allege "fault." as was previously required. In lieu of claims regarding fault, a complaint for divorce nor merely needs to allege that "the relationship between Plaintiff and Defendant has broken down irretrievably for a period of at least six months." Among other effects, the new law may reduce the acrimony associated with the divorce process by eliminating the need for litigants to make allegations that frequently sparked animosity on the part of their spouse, and thus tended to provoke litigation.
Individuals who wish to take advantage of NY's no fault basis for divorce should note that in contested actions, a court is not permitted to enter a judgment of divorce until all financial issues have been resolved. Thus, claims with regard to maintenance, equitable distribution of martial property and debts, child support, and other financial matters must be fully resolved for a judgment of divorce to be entered. In addition, the reform package that Governor David Paterson signed in August provides guidelines for fixing temporary spousal support (or maintenance) while a divorce is pending, and attorney's fees. The legislation creates a formula and list of factors to govern such awards. The new law creates a presumption that a less moneyed spouse in a divorce case is entitled to payment of attorneys' fees. Pursuant to Section 237 of New York's Domestic Relations Law (DRL), in determining the appropriateness and necessity of fees, the court is required to consider the following factors:
- The nature of the marital property involved;
- The difficulties involved, if any, in identifying and evaluating the marital property;
- The services rendered and an estimate of the time involved; and
- The applicant's financial status.
Most New York divorce attorneys have welcomed the new No Fault law as a positive development that was long overdue. Rapaport Law Firm can assist you with both contested and uncontested divorces in NY and NJ.
