Report of the Matrimonial Law Section on A 6418 / S 2447 This report reflects the opinion of the Matrimonial Law Section only. It has not been approved by the Board of the Directors of the New York County Lawyers Association and does not necessarily reflect the views of the board. Recommendation: This bill is disapproved. A 6418/S 2447 An act to amend the domestic relations law, in relation to the time period for a conversion divorce and consideration of the loss of health insurance benefits in the deposition [sic] of property and the determination of maintenance. This Section opposes A6418/S2447 for a number of reasons: 1. Overview A. New York is the only state in the nation that has not enacted a no fault divorce law. A judgment of divorce can be granted on fault grounds (adultery, cruelty, abandonment, imprisonment, mental illness) or, after the parties live separate and apart pursuant to a written separation agreement for one or more years, either party may sue the other for divorce on a cause of action seeking to convert the agreement into a judgment of divorce. While this latter ground might seem to be a kind of no fault divorce, in fact it is not for two primary reasons. First, proof of the cause of action is dependent upon the parties entering into a separation 1
agreement. This prerequisite gives the party opposing the divorce leverage to extract terms to his or her advantage in exchange for ending a dead marriage. Second, even if the parties enter into the agreement, they must wait an entire year before the can convert the agreement into a judgment of divorce. In stark contrast, every other state in the union permits married couples to divorce on no fault grounds, e.g., irreconcilable differences or incompatibility, without first resolving all of their financial and custodial disputes and without a waiting period. B. Fault trials are expensive and emotionally wrenching for the litigants. They are required to disclose intimate information that is irrelevant to the resolution of the financial and custodial issues that are of concern when a marriage has ended. Fault trials consume scarce judicial resources and compel judges to resolve the often unanswerable and wholly irrelevant question of why a marriage has broken down. C. As the memorandum in support of the bills states, in response to this antiquated law, many New Yorkers go to other states to get divorced, e.g., New Jersey, Connecticut, and Vermont. Our citizens are forced to flee New York because these other states offer no fault divorce but not, as the memorandum in support of the bills suggests, because those states have eliminated the waiting period to convert an agreement into a judgment of divorce. New York s law punishes nonmonied spouses and parents who live with their children. Individuals with the financial means to move to other states to avoid New York s restrictions can do 2
so; those without the financial means cannot. Parents who live with their schoolage children most often women cannot as a practical matter move to another state without judicial permission and, in any event, they are often reluctant to move because of the disruption it would cause for the children. This anchor does not apply to parents who do not live with their children, for example, parents who have moved out of the marital residence. D. The temptation by a client to offer false testimony so that he or she can obtain a divorce on a fault ground thrusts the attorney and the client into an untenable situation fraught with all of the risks and the problems associated with an attorney facing the possibility of dealing with false testimony. This is not conducive to constructive attorney-client relationships and indeed is reminiscent of the circumstances that obtained in the divorce field when adultery was the only ground upon which a divorce could be obtained in New York. Equally unfortunate are the instances when testimony is provided to the court that engenders a level of skepticism about its truthfulness. E. The subject bill would reduce the waiting period from one year to three months. While this would be a salutary change, it fails to address the heart of the problem. 2. The Legislature should enact no fault divorce legislation. This bill fails in this respect and, we believe, it diverts attention from this pressing need, allowing the Legislature to claim that it has reformed the grounds aspects of divorce law in New York while in 3
reality it continues to avoid bringing New York law into the twenty-first century by adopting no fault divorce, as have the other 49 states. 3. The bill actually makes it more difficult for parties to convert a separation agreement into a judgment of divorce. Under current law, the parties are permitted to enter into an acknowledged, written separation agreement which, after the requisite one year waiting period, they can convert into a divorce. Parties often resolve the financial issues and incorporate the same into a separation agreement, leaving custodial issues open for later resolution. The proposed legislation shuts this door by limiting the parties to a conversion divorce only if they have actually resolved all of the issues in the matrimonial action. There is no reason to cut back on the already very limited rights New Yorkers have to manage the dissolution of their marriage. 4. Forcing parties to wait for any period of time before they may legally convert their separation agreement into a divorce makes no sense since they have necessarily agreed that they want to live separate lives. As the memorandum in support of the bill indicates, the present one-year waiting period is arbitrary and unnecessary. Shortening the waiting period does nothing to address the wastefulness and arbitrariness of any waiting period. 5. Betraying a fundamental misconception of how separation agreements are implemented, the memorandum in support of the bill justifies the waiting period by saying that it will continue to give the parties sufficient time to implement the substantive provisions of their agreement. Since the agreements frequently involve ongoing child support and 4
maintenance that is payable over time, the substantive provisions of most agreements cannot be implemented for years, much less in the waiting period. If assets need to be transferred pursuant to the agreement, implementation occurs in most cases and, where that is a problem, the Court has jurisdiction to enforce the agreement even after a judgment has been entered, regardless of the waiting period. In fact, if the only ground available to the parties is a conversion divorce, the existence of a waiting period requires a party seeking to implement an asset transfer to file a separate action for specific performance of the agreement before he or she can even commence the divorce action. By eliminating the waiting period, that party could commence a divorce action and move for an order directing compliance with the agreement, a far simpler, quicker, and less expensive procedure. Further evidence of the irrelevance of a waiting period is found in the thousands of divorces that are granted on fault grounds after the parties have entered into an agreement. In these cases, there is no waiting period while the parties implement their agreements. 6. The bill instructs the Court to consider the loss of health insurance benefits but fails to direct the Court to consider the loss of other similarly valuable ancillary benefits such as dental insurance, life insurance, flex payment accounts (which can be used to pay with pre-tax dollars such expenses as uninsured health care expenses, child care, and transportation expenses) and other customary employee benefits. The implication of the omission is that such benefits are not to be considered by the Court. Sound public policy and fairness should require consideration of all financial benefits ancillary to 5
employment. Anything short of this would be antithetical to the equitable premise that is the foundation of New York s divorce law. 6