Brian D. Perskin & Associates

Divorce Strategies Under New York’s No-Fault Divorce

A year ago on August 15, 2010, New York Governor David Paterson signed no-fault divorce into law. The law became effective on October 13, 2010. Other states such as California were leaders in adopting no-fault divorce. New York was the last state in the union to move to a full no fault system. This legislation affects cases where one party wants a divorce but the other does not.

In a showing-of-fault system, parties who want a divorce must show one spouse is at fault for breaking up the marriage. For example, by getting the other party to admit to adultery or bring evidence before the court that the other party committed cruelty. The result was cumbersome legal procedures and in many cases legal fiction. This created problems when both parties wanted to leave the marriage amicably; however, they were forced to go to court. A couple stuck in a bad marriage could incur high legal fees and endure a very stressful process in order to get a divorce. For this reason, states including New York allowed married couples to enter into separation agreements which could lead to a divorce provided both parties agreed to the separation.

The no-fault legislation goes one step further than separation agreements by providing options to divorce for couples who can't agree that they want a divorce. There is no defence to New York's no-fault divorce law. If you or your spouse wants a divorce, this will be considered a valid ground for divorce. In New York, a divorce can now be obtained within six months.

The no-fault divorce scheme has several implications in terms of creating a sound divorce strategy.

  • No-fault divorce can affect bargaining power during negotiations. This is why it is important to hire a lawyer who has stayed up-to-date with the current state of family law practice in New York and has updated strategies to respond to no-fault legislation.
  • A pre-nuptial agreement can be very important to protect your rights since you may not have the option to stay in the marriage to avoid high maintenance or child support costs. If you are considering getting married, consider consulting a lawyer to draft an agreement to protect your financial and other assets.
  • The timeline for divorce can now be much shorter. This means clients should hire attorneys who are prepared to move quickly. Married couples can get divorced in as little as six months. If you want to get divorced as soon as possible, a good lawyer can now get you out of your marriage more easily. Alternatively, if you are contesting your divorce, you spouse may be able to obtain a divorce faster than before. This means you need a legal strategy to protect your rights in place as soon as possible. In either case, if you are considering getting a divorce in New York, get a lawyer with a strategies to move your case through the legal system efficiently.
  • Fathers are particularly vulnerable in a no-fault divorce scheme since their wives can simply leave then and take their kids. Good legal representation early in the process can help protect father's rights.