By Michelle Barreto
Late Thursday night, the New York State Assembly passed no-fault divorce legislation in a 113–19 vote after the Senate voted 32–29 to approve the bill two weeks ago. Governor David Paterson is expected to sign the bill into law. The bill allows a spouse to file for divorce unilaterally after swearing under oath that the marriage has broken down irreconcilably for six months. The other spouse gets no say in the matter.
Movement of the legislation in New York is significant because the Empire State is the only one in the union that retains a fault standard in divorce law.
Currently in New York, a judge can grant a divorce only if either spouse is found guilty of cruelty, abandonment or adultery or has been sent to prison for three years. For irreconcilable divorces, the couple must be legally separate for at least one year before a divorce can be granted. In this case, both sides must mutually consent that there are “irreconcilable differences” that led to the divorce. The reasoning behind this is simple: The law should not disadvantage the party to a contract who is neither at fault nor desirous of a breach.
David Usher, president of the Center for Marriage Policy, and Michael McManus, founder and president of Marriage Savers, highlight the detrimental effects of no-fault divorce on American society since states began to pass it in the early 1970s: “No-fault divorce laws were a mistake that encouraged marital irresponsibility,” they write, “resulting in a 50-percent divorce rate, a 51-percent decline in marriages since 1970, a sixteenfold hike in cohabitation and an 800-percent increase in out-of-wedlock births.”
In addition, Heritage Foundation Senior Research Fellow Chuck Donovan underlines the harmful effects that increased divorce rates have on children in his WebMemo Marriage, Parentage, and the Constitution of the Family:
Advocates of no-fault divorce assured policymakers that the impact on children would be minimal if not beneficial … but children of divorce disproportionately suffer from such maladies as depression, compromised health, childhood sexual abuse, arrests, and addiction.
The proposed bill in New York is even uniting an unusual mix of organizations concerned about its potential harms. The National Organization for Women has united with the state Catholic conference in an attempt to prevent New York from becoming the last state to adopt a no-fault standard. Their reasoning: Such policy harms women, children, and society at large. They argue that the bill would allow judges to ignore cruelty that occurs in some marriages and also permit husbands to hide assets from the court, leaving divorced women and children financially unstable.
Rather than blindly follow the totem of a no-fault divorce regime, especially where children are present in the marriage, New York legislators might have taken the lead in looking for more ways to strengthen marriage and deter divorce. The implications of no-fault divorce for society—increases in marital irresponsibility, increased risks for children’s health, and financial instability—make the case for common-sense reforms well worth a fresh hearing.