When feminists and Catholic priests join forces to fight against legislation backed by lawyers who say they want to get paid less, it’s a sure sign something confusing is happening in Albany.
Confusion was the word used to describe a vote on no-fault divorce legislation by the state Senate Judiciary Committee in early March. Initially the legislation appeared to be defeated 12-10, but Senate staff members later said when proxy votes were counted the measure was voted out of committee by 12-11.
The bill was sponsored by state Sen. Ruth Hassell-Thompson, D-Bronx. Hassell-Thompson’s staff said she will reintroduce the bill for another committee vote after the Legislature finishes the state budget.
New York state is one of only two states without a provision for no-fault divorce, which allows a couple to dissolve a marriage based on mutual agreement or “irreconcilable differences.”
Hassel-Thompson’s bill would allow a judge to grant divorces in cases when one spouse states, under oath, that the relationship between the husband and wife has broken down irretrievably for at least six months. The bill would require that equitable distribution of property, child and spousal support issues and custody and visitation issues be resolved before a divorce is finalized.
The bill would also overturn New York’s fault system of divorce, which requires one of six legal grounds to be established before a divorce can be granted: cruelty, abandonment, imprisonment, adultery, legal separation or separation by agreement. Without having one of those causes established in court, the other option in New York is for both parties to sign a separation agreement and live apart for a year, after which a judge can convert the separation to a divorce.
Same view, different motive
A 2006 report by the Matrimonial Commission of the state Unified Court System recommended that the Legislature adopt a no-fault divorce system. Since then, no-fault legislation has been endorsed by the New York State Bar Association and the New York Women’s Bar Association.
The New York State Catholic Conference opposes no-fault divorce, viewing it as further breaking down the institution of marriage.
“A [no-fault] divorce would be granted even if one spouse wished to remain married. Thus, under a no-fault system, New York’s law would be refusing to allow one person to make a substantive enduring commitment to another person, a commitment that would be honored by our courts,” according to a statement from the Catholic Conference. “No-fault divorce would send the message that marriage is temporary and trivial and can be easily breached, more easily perhaps than a contract for a new cellphone.”
Normally at odds with the church over moral issues, the state chapter of the National Organization for Women is also opposed to the legislation, but for very different reasons.
“Believe me, we aren’t in any way trying to hold marriages together; that’s not where we come from,” said Marcia Pappas, president of the New York state chapter of NOW. “We’re saying that fault divorce allows for the non-monied spouse to have what we consider to be a bargaining and negotiating place [against] her wealthy husband because women are generally the ones who stay home and take care of the kids and give up their careers. [Fault divorce] helps women force their husbands to negotiate their way out of the marriage.”
Ronnie Gouz, chairwoman of the family law section of the New York Bar Association, said the fault divorce system is archaic and so is NOW’s idea of the totally dependent wife.
“They have this notion that there’s this older woman who’s going to be left for a younger woman and this wife has no leverage except to hold back the divorce. This woman is financially dependent, been married for 40 years, has never had a job and doesn’t have a bank account and there’s no level playing field in the marriage. In reality, that’s certainly a rarer and rarer [scenario],” Gouz said. “We think the fault system is very anti-woman. Our neighboring states, Vermont, New Jersey, Connecticut, are all no-fault and the ability to move and get your no-fault divorce is certainly easier, usually, for the man, certainly the non-custodial parent.”
The New York Bar Association argues that the fault divorce system is good for lawyers but bad for justice because it often encourages people to lie and courts to approve of legal fictions in order to establish grounds for a divorce.
“Lawyers benefit in a pocketbook sense because fault divorce creates more litigation and more fees for lawyers, and yet I think that all of the lawyers that I know well have a horror story of injustice related to this system,” Gouz said.
Michelle Haskin, former president of the Capital District Women’s Bar Association and current co-chairwoman of the matrimonial committee of the state Women’s Bar Association, said lawyers “in the trenches” of divorce law know fault divorce is bad for women and for families.
“The only people who profit … are the lawyers. I tell my clients all the time, if I am the person who’s saying this is a waste of money, and I am the person who will make the money, you should listen to me,” she said. “Grounds [for divorce] trials lead to the airing of completely unnecessary dirty laundry by two people who may have a hope of getting along for the sake of their children but certainly won’t if there is litigation where people are accusing each other of cruel and unusual treatment. It also encourages people to lie because if you have a side agreement to get divorced, it takes an entire year.”
Ellen Schell is the legal director for the Capital District Women’s Bar Association Legal Project, an organization devoted to providing free and reduced-cost legal advice for women. She said no-fault divorce would be a “godsend” for the many women married to physically abusive husbands her organization represents.
“Having to establish grounds is problematic for victims of domestic violence, particularly because there is a statute of limitations on cruel and unusual treatment of five years. We regularly have women come to us after having fled their abusers more than five years ago, and they therefore have no grounds to get divorced,” Schell said. “There are also safety issues because to prove grounds you often have to serve the other party with very detailed complaints and what that often does is poke a stick into a hornets’ nest, which can have very severe safety considerations for our clients.”
The Legal Project has seen women lose grounds trials, forcing them to remain married. The need for a trial can also scare some women into staying with abusers.
Schell said she’s seen instances in which an abusive husband will fight the grounds, represent himself in court and cross-examine the wife he abused, enabling him to traumatize her yet again. She said the opposition of no-fault divorce by NOW only represents the interests of a small portion of women.
“They’re saying [no-fault] is bad for women, but the truth is it’s bad for some women, their constituents. It is most emphatically not bad for all women,” she said.
“NOW’s position that women can use grounds as a bargaining chip, I believe, is generally based on one particular group of women’s cases, and those tend to be relatively wealthy women where there is a lot of property to be divided. Those aren’t the cases we see; I don’t think those are the majority of cases. I think those are probably the women who are involved in NOW.”
Pappas takes umbrage at the notion that her organization is representing the interests of elite housewives over poor women. And she said she’s disappointed in the state Women’s Bar Association for supporting no-fault divorce. She said professional women who have benefited from the feminist movement are turning their backs on the majority of women who still make less than their husbands. And she rejects the notion that the state Bar Association’s position on no-fault is based on altruism.
“They have a bunch of rich clients in New York City that they want to get quick divorces for. The downstate lawyers in the New York state bar are the ones pushing for this, and their clients aren’t poor,” she said. “I think for the women’s bar this is about self interest because they are the women who are doing well. I’ve had professional women tell me how distressed they are at the notion of paying [alimony] to lower-income husbands. Well, tough, that’s equality.”
Nancy Erickson, a Brooklyn-based attorney who advises NOW, said there are many injustices about New York’s divorce system. She said the Legislature should mandate maintenance payments for spouses with lower income, with guidelines similar to child support, and guarantee that the wealthier spouse pay for all of the legal costs to both parties in a divorce.
“At some point the Legislature is going to have to understand that they have to level the playing field or they’re not going to get no-fault, period, because we aren’t going to stop fighting for the lower-income spouse, who is usually the woman. So pass the stupid laws that we need, and then you can have your no-fault.”
Assemblyman Jonathan Bing, D-Manhattan, has sponsored a no-fault divorce law in the state Assembly. He described himself as a “card-carrying member of NOW” but says the group’s leadership is wrong on this issue. He said he has 66 cosponsors for the bill; 76 votes are needed to pass it. He said he can get a committee vote on his bill after the state’s budget process.
“The bill has wide support from Republicans and Democrats, urban and rural, upstate and downstate,” he said. “After the budget process I’m going to try to move forward with this by the end of the session. I think in these economic times it would help because it would require people to spend less money getting divorced.”
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