No Fault Divorce is Moving Forward

For decades, New York State's divorce system has been built on a foundation of winks and falsehoods. If you wanted to split quickly, you and your spouse had to give one of the limited number of allowable reasons - including adultery, cruelty, imprisonment or abandonment - so there was a tendency to pick one out of a hat.

"What the fault divorce system has done is that it has institutionalized perjury," said Malcolm S. Taub, a veteran Manhattan matrimonial lawyer. "This play-acting goes on and everybody looks the other way and follows the script."

On Tuesday, the State Senate approved a bill that would permit divorce without a claim that either side is at fault, and on Wednesday the State Assembly Speaker, Sheldon Silver, said his members were discussing the details of similar legislation. "I support the concept," Mr. Silver said.

For judges, New York's requirement of fault when the rest of the country has abandoned that requirement creates a series of problems. One of them is the need to listen to private information some of them feel is none of their business.

Acting State Supreme Court Justice Jeffrey S. Sunshine, the supervising matrimonial judge in Brooklyn, said it seemed somewhat 19th century to have people testifying about "constructive abandonment," the legal term for rebuffing intimacy for a year or more.

"Should we really," Justice Sunshine asked, "in the 21st century be having people get on the stand and testify that 'my spouse refused to have sex with me'?"

Aside from the intrusion, Justice Sunshine added, it is not a subject that lends itself to an easy decision, since there are often no witnesses to what goes on in private. "Some of the claims may be dubious," he said.

If the truth gets a workout in cases where both sides want to part, it can be wrenched completely out of shape in contested divorces. The facts can be leverage, lawyers say, and denying them can be used to stop a divorce case in its tracks.

Several divorce lawyers said there are multimillionaires in New York who have not been faithful but who are keeping their spouses in loveless pairings so as to avoid a division of wealth. They simply deny adultery.

Court battles over fault are destructive, said Norman S. Heller, the head of the matrimonial practice at the law firm Blank Rome. "It's ugly," he said. "It's expensive. It poisons the relationship."

New York law has long allowed people who agree to a divorce to get one if they both sign a separation agreement and live apart for a year. A new provision could do away with the need for the agreement.