Major Changes in Divorce Law Effect Divorce Mediation.
As I mentioned in my previous post, New York state has enacted major changes in the law of divorce and effect divorce mediation on Long Island. In this post I will lay out briefly what each one is; in later posts I will explain each one in depth.
Major Change in New York Divorce #1: No Fault Divorce Comes to New York
The first is, perhaps, the most signficant. New York had long been the holdout on n0-fault divorce. The Courts had come up with a work-around, called “constructive abandonment”, but it was really a fiction; in many cases it required the parties to lie about their behavior to the Court, with the Court winking and nodding to allow the divorce. All it took was a reluctant spouse, who didn’t want a divorce, and you were headed for a trial as to whether the party seeking a divorce had grounds or not.
I have tried grounds cases — they are not so easy to win. So, a spouse who did not want a divorce could possibly defeat the divorce, or, more commonly, use that as leverage to obtain a more favorable financial settlement from a spouse who was completely fed up and wanted out. That is no more — all it takes is an affidavit from one spouse that the marriage has experienced “irrevocable breakdown” for the previous six months and you have grounds for divorce. Suprisingly, there may still be some issues there — I will discuss them in the next post.
Major Change in New York Divorce #2: Temporary Maintenance During Litigation Now A Formula
A major issue in any ongoing divorce has to do with support during the period of the litigation, which can run over several years. It has been a hotly contested issue, and the outcome can often determine how the rest of the litigation progresses. If the spouse seeking maintenance does not get what she (most typically) wants, she may be forced to settle prematurely. On the other hand, a substantial award against the husband (again, typically) may encourage the wife to delay resolution as long as possible and may put the husband in an almost impossible situation financially. [These are not meant to be sexist characterizations -- they reflect the realities of litigation.] The basic principal that the Courts tried to apply ws the real economic needs of the parties and the pre-divorce standard of living of the parties.
The Domestic Relations Law now has a formula that the Court is to apply; it completely ignores the economic needs of the parties and the pre-divorce standard of living and just seeks to distribute the income of both parties pursuant to a formula. Presumably, this will make the job of judges easier.
The formula is extremely complicated; I cannot go into it here. I will explain it in detail in a subsequent post. Essentially, it compares the income of each party, then seeks to distribute income from the party with greater income to the one with with income. Obviously, there may well be extremely contentious disputes over exactly how much income one party or the other actually has. The issue of unreported, or “off the books” income will become a major issue here.
Major Change in New York Divorce #3: Permanent Maintenance
The statute now provides for a much more extensive list of factors for the Court to consider in making a post-diviorce maintenance award. However, there is no formula; instead, the legislature has called for a study of this issue. In my experience, the temporary award more often then not becomes the final award, so it is hard to know what the legislature was up to here.
Major Change in New York Divorce #4: Interim Counsel Fees
The new statute provides a “rebuttable presumption” that the Court will award legal fees to fund the litigation, on behalf of the non-monied spouse, to be paid by the monied spouse. That means that the spouse with the greater income (typically the husband) is going to get hammered if he is unable to convince the Court that his spouse should pay her own fees. This, again, is a hammer against the monied spouse. We shall have to see how this works out.
Tagged as:
assessment of economic need,
Award of Legal Fees In Divorce Mediation Long Island,
changes to New York Divorce laws,
Distribution of Assets and Liabilities In Divorce Mediation Long Island,
Grounds for Divorce,
Recent NY Court Cases
