business woman in handcuffs.jpgAmong the opening scenes of Eat, Pray, Love, Elizabeth Gilbert in her memoir has made the decision to leave her husband.  She offers to sell the house and split everything 50/50.  When her husband rejects this, she offers him a “different kind of 50/50 split.  What if he took all the assets and I took all the blame?”

That question, in fact, had been a hallmark of a New York divorce: a product of New York remaining the only state without a “no-fault” divorce law.

In New York, a married couple had been able to get divorced by living apart for at least one year pursuant to a written agreement to separate.  However, without that written agreement, a couple could not get divorced in New York without a finding that one spouse had been guilty of misconduct.  In most cases, that fault was cruel and inhuman treatment, abandonment, or adultery.  Particularly with a long marriage, the burden of proving such misconduct was heavy.

That all changed on August 13, 2010 when New York’s no-fault law was passed.  The accompanying Legislature memo noted that requiring proof of fault prolonged the divorce process, often adding stress, further harming the partners, and impacting the emotional well-being of children.  It is expected that no-fault divorce, itself, will bring a reduction of domestic violence.

However, the Legislative memo ignored one practical effect of requiring proof of fault, often present in contested divorces.  That effect was more material.  Freedom often had a price: the whole house; a longer (or shorter) period of support; custodial demands; etc.

Now, in divorce actions commenced after October 11, 2010, one spouse will be able to end the marriage simply by stating under oath that the marriage has been broken down irretrievably for at least six months.  The Judgment of Divorce will not be granted, though, until all financial and custodial issues are resolved.

Nonetheless, one of the weapons of the negotiation arsenal has been eliminated.