No Fault Divorce

Since 2010, "no fault" divorce is available in New York by citing the "irretrievable breakdown of the marriage." This simplifies the divorce process and permits the parties and the courts to expend their time and energy on the financial and child-related aspects of the divorce.

In June 2010, the New York legislature finally passed "no fault" divorce legislation. This development was most welcome, as New York courts were perhaps the last in the nation to continue holding trials to determine matters of adultery, abandonment, and so forth. Now, the court can focus its energy solely on the issues of consequence - the financial and child custodial issues that need to be resolved so that the parties can move on with their lives.

Can my spouse challenge a no fault divorce petition?

Not on the basis that the marriage hasn't broken down. (Your spouse might challenge the petition for lack of jurisdiction, or some other issue not related to fault.) Interesting, in 2011 and 2012, trial courts split both ways on that issue, with some courts ruling that a defendant-spouse was entitled to a hearing on the matter, and other judges ruling to the contrary.

However, the matter was resolved by the Appellate Division in 2014 in Trbovich v Trbovich (4th Dept), which is binding upon all trial courts unless and until another appellate court rules to the contrary, which is exceedingly unlikely. "We agree with plaintiff that the opposing spouse in a no-fault divorce action pursuant to Domestic Relations Law § 170 (7) is not entitled to litigate the other spouse's sworn statement that the relationship has broken down irretrievably for a period of at least six months." - Trbovich.

Can I still get a fault-based divorce?

Technically, yes, but even if grounds exist for a fault divorce (e.g. your spouse committed adultery, abused you, or abandoned you) I almost invariably advise clients to proceed on no-fault grounds. To the extent that the fault that you complain of is relevant to the financial or custodial issues, you can certainly still present evidence on that point. Whether you obtained a divorce based on that evidence does not affect the weight of that evidence.

Are there any situations where a fault-based divorce makes sense?

To my knowledge, only in situations where there is an immigration issue. A spouse who is in the process of obtaining status based on their spouse's sponsorship may be in a better position from an immigration perspective if he/she is able to obtain a divorce based on their spouse's bad behavior. You should consult with an immigration attorney if this is an issue for you.

Otherwise, you should plan on obtaining a no-fault divorce, even if there was in fact "fault" on the part of your spouse. While I can appreciate that some people wish to be vindicated by the court, it is best to seek vindication in another aspect of the case, or somewhere else entirely.

What did people do before no-fault divorce?

Usually, one spouse claimed "constructive abandonment" which in essence complained that their spouse had refused to have sexual relations with them for at least one year. The complaining spouse had to testify (either orally, or in a sworn document) that their partner had refused to have sex with them for at least one year, despite numerous entreaties to resume said relations, and despite the spouse not suffering from any physical impediment that precluded sexual relations. It was an utterly absurd exercise that played itself out in every courthouse across the state on a daily basis, and divorce lawyers are glad to be done with it.

The situation was even more absurd if one party believed they could gain a strategic advantage by resisting the divorce. If so, the defendant-spouse would refuse to consent to a finding of abandonment or cruel treatment, and the plaintiff-spouse would need to convince either judge or jury that their spouse had in fact abandoned or abused them, thereby entitling them to be divorced. Fortunately, that type of farce is a thing of the past.