No-Fault Divorce...what does it mean?

posted Oct 14, 2010, 8:36 AM by michael scibetta

New York State has finally adopted a no-fault divorce policy!

No-fault divorce means that a couple need not prove any instances of wrongdoing or abuse in order to file for divorce in a court of law.  New York is the last state to adopt this stance.

Under the no-fault law, which takes effect this October, couples will be able to terminate their marriages within a period of six months after declaring that their marriage is “irretrievably broken.” The current law requires a reason, such as allegations of cruelty, abuse, adultery or abandonment, all of which are codified within the New York State Domestic Relations Law section 170.

Clearly, this new law will come as a great relief to many people considering a divorce. Passage of a no-fault divorce provision stands to reduce long, cutthroat court battles over who’s to blame when marriages fail. The end result should mean lower legal fees as well…right???

Maybe not.

The law appears to have some unresolved issues regarding the details in calculating maintenance amounts (i.e., alimony and child support).

Perhaps the most troubling new provision is a formula for judges to determine alimony. Under the current system, judges have broad discretion and consider the needs of a family and its budget to determine what is necessary to maintain that marital lifestyle.

Under the new law, however, only up to $500,000 of a spouse’s income will be counted when determining alimony.

This might not be an issue which will impact the middle and lower classes, but it IS an issue for those with a household where a spouse has been earning in excess of $500,000 per year.

To illustrate…if a spouse earns $2 million a year, only $500,000 of that will be counted toward the formula for determining an alimony award.

And here are the two formulas judges will consider:

1)  Thirty percent of the higher-earning spouse’s income, minus 20 percent of the lower-earning spouse’s income.

2) Forty percent of their combined income, minus the lower-earning spouse’s income.

The lesser outcome of these two formulas will be the alimony award, although the law does give judges the option to consider further factors.

What does all of this really this mean?

Well, apparently even if you’re married an extremely short time, a spouse could be entitled a substantial amount of alimony. On the other hand, those non-working spouses (or low earning spouses) who were living a lavish lifestyle due to high earning spouses…better get ready for a substantial downgrade.

Other concerns I have are over a provision that would make the higher-earning spouse responsible for all the legal fees for both sides. Spouses earning more than their mates likely will be ordered to fork over temporary alimony payments -- even if their soon-to-be ex's don't really need it.

There is also a provision that places a three-year expiration date on child support orders, meaning spouses would have to return to court to have it renewed. While returning to court every three years might be good for an attorney’s earnings, it will mean continuing legal fees for the clients and continued haggling over money.

Final note: as with much new legislation, it will take time (and perhaps money) to sort out all of the complexities of this no-fault provision. Patience is a virtue…but then that runs somewhat contrary to the expedited motivation behind this law does it not? More to follow………..