Saturday, October 31, 2009

Does Anyone Seriously Want Fault in a Divorce Case?

That question came to mind when I read the following in Continuing Legal Education Class on Matrimonial Law Scares a Single Attorney from Single Female Lawyer Fights Back Blog:

I could have been married years ago. I probably would have been had it not been for that Domestic Relations law part of bar review some years ago. And most recently this CLE class made me have second thoughts despite my personal disappointment at not being married yet at my age. New York is the only state in the union that does not recognize no-fault divorce. In other words, you can't obtain a divorce from your spouse on the grounds of "irreconciliable differences" that you hear so much about in divorce news on the Hollywood front from the LeAnn Rimes and Eddie Cibrian files or from the title of that 1984 movie starring Drew Barrymore as a little girl divorcing her parents.

You have to prove that your spouse did something wrong - beat you to a purple eyed pulp or slept with his hot younger secretary while you were putting your children to bed at home under the false pretense that he was working overtime to impress the boss. The grounds are as follows: adultery, cruel and inhuman treatment (which is completely subjective and might not include some really cruel behavior), abandonment (actual or constructive), confinement to prison for three years and living separate and apart pursuant to a separation agreement.

Your husband being an atheist and disapproving of you having your children baptized in the Catholic Church is not grounds for divorce in New York. Neither is the fact that he wants to control whether or not you breast feed. And these most certainly would not be reasons to find him an unfit parent in any state. The closest you can come to no fault divorce in New York is conversion divorce in which after a legal separation agreement where the couple lives separate and apart for at least a year they may divorce.

In the end though, your spouse can always contest it and refuse to enter into that agreement. Then, you are stuck in a dead marriage. And it just might be for no other reason than spite. What if you are just plain miserable in the marriage but the person doesn't want to let you go? It's not like you can break up with them and never be linked again. They can always beat you over the head with legal documentation of your live union.

The first lecturer discussed the grounds. She then said that her clients ask her if they could begin dating other people once their spouse has filed for divorce. She advises them not to; their spouse can amend the complaint to include a ground for adultery. In cases where the spouse and the third party are not engaging in sexual intercourse but are kissing and fondling or carrying on an affair of the heart with emotional bonding there's the ground of cruel and inhuman treatment. So don't even think about buying that sexy lady you spotted at CLE lunch or a drink!

There are ways a spouse can legally blackmail you to keep you in his or her hands under New York law. If you just leave the marital home because it's dead, then you've established reason for them to find fault with you. You've abandoned them.

Suppose you just don't want to have sex with them. That's the ground of constructive abandonment as opposed to the actual abandonment. I've reached that point in a relationship because the guy got on my nerves after a while. He was so disgusting I didn't want to touch him - poor hygiene and a mean streak. He kept making offensive jokes about people like his life depended on it. I wanted to slug him every time I heard his shit. Since I wasn't married to the asshole, dumping him in a voicemail was a clean break.

But if we were married, things wouldn't be that simple. I would have wanted to allege cruel and inhuman treatment. The things he said were inappropriate and embarrassed me. However, the first lecturer cited a case where a husband merely embarrassing his wife did not constitute cruel and inhuman treatment in the eyes of the law.
All I can see is adding more trauma to a situation filled with trauma and the stress of worrying if the judge will even grant the divorce.  I wonder how many cases there are in New York (or were in Indiana before we removed a fault requirement in 1973) where the petitioner fails to prove fault.  The idea that one can lose a divorce case and return to the marriage creates an ugly image in my head.


Femme Attorney said...

My point exactly. This requirement in New York State encourages perjury. And it makes a divorce even more acrimonious. I've never been married, but I've had amicable breakups. Why make them hostile?

Sam Hasler said...

My mother and father divorced in 1964,she thought the process silly (not her words but my description). Perjury reigned during the days of fault divorce.

By the way, great blog you got.