I learned to practice matrimonial law in the Bronx. So I don't really give a fuck if the New York State legislature has finally decided to join the rest of the country in instituting no-fault divorce. Go ahead and say you want a trial on divorce grounds anywhere in the greater NYC area. You'll be within your legal rights, but you've just pissed off the judge. Congratulations on upsetting the primary person who controls your client's fate.
Divorce grounds in New York rarely affect the distribution of marital property. When they do it's usually in some sort of extreme circumstance that there's little doubt about. Otherwise, grounds merely aggravate everything and waste time. The First and Second Departments, the New York State trial court jurisdictions that cover NYC and environs, effectively don't even allow you to present evidence on the issue of grounds. Good luck proving archaic legal concepts like adultery or constructive abandonment (refusal of one spouse to have sex with the other for a year) without being able to present evidence. The judiciary in NYC, by fiat, effectively abolished fault divorce years ago because it’s an impediment to efficient dispute resolution. Arguing divorce grounds in a New York State Court is at your client's peril.
Fault divorce is just not worth it. A fight over grounds is brutal because it's all about who is to blame. It focuses the parties on the past and impedes the speedy, equitable and efficient distribution of assets so important to our capitalist society. Every other section of NY divorce law is about moving forward. Alimony. Child Support. Equitable Distribution of Assets. What to do with the retirement funds. None of these issues comes near raising the animosity that a grounds fight can engender even though a grounds fight rarely affects the distribution of property.
Nonetheless, in New York you still have to statutorily plead grounds when initiating a divorce. Furthermore, NOW maintains that taking away grounds removes valuable negotiating leverage for the woman when it comes to alimony and property distribution because it allows the woman to keep the divorce from going forward without her consent as to grounds. But the reality is that if you want to get a divorce in NY you can. The number of times that a NYS court has refused to grant a divorce on the issue of grounds can be counted on one hand. And even if NOW is right, there are better ways to prevent the moneyed man from walking away with everything in a divorce than utilizing the sclerotic concept of fault. Making sure low income women have access to counsel is one way. Excellent organizations like inMotion help with this cause. The equitable powers of the judge is another way, as most judges I’ve appeared in front of won’t easily allow an unfair distribution of marital assets.
Moreover, NOW ignores the fact that abusive husbands readily use divorce grounds as another way of tormenting their spouses. These type of men enjoy assigning blame to their spouses one more time. It’s another form of control for them. Invariably when you explain to your client what the husband is alleging as grounds for the divorce your client becomes furious. “He’s saying what?! That liar!” Etc. etc. You then spend the rest of the meeting with your client explaining to your client the various grounds, their ability to counterclaim under any of them, and how it's going to piss off the judge and have no real affect on maintenance or equitable distribution. You waste valuable time dwelling on a shattered past. Contested divorces are by nature acrimonious, and one should do everything reasonable to calm the passions on both sides, especially actions that don't affect the distribution of marital assets. I fully support the New York State’s legislatures attempts to join the rest of the states and move our state’s divorce law into the 21st century.
