On August 15, 2010, Governor Paterson signed legislation that stands to revolutionize divorce proceedings in New York State. The new legislation implements no-fault divorce in New York. It also reforms the law governing awards of temporary maintenance, counsel fees and expert fees. The divorce reform package is aimed at decreasing the time, expense and contentiousness of matrimonial cases, while balancing the scales of justice so that the outcome of the litigation is not determined by the weight of the monied spouse’s wallet.
No-fault divorce will allow New Yorkers to dissolve their marriages by one party claiming under oath that the marriage has irretrievably broken down for at least six months. The issues ancillary to the divorce, such as equitable distribution, support, custody and parenting time, must be resolved before the marriage can be dissolved.
New York was the last state in the nation to adopt no-fault divorce. Prior to the new legislation, to get a divorce, a party was required to show fault, such as adultery, cruelty, imprisonment, or abandonment. In the absence of grounds, the divorce would be denied. Since the fault requirement forced one spouse to take the blame for the demise of the marriage, it became commonplace for spouses to commit perjury in order to obtain a divorce. Divorce grounds (or the lack thereof) often gave one side a tactical advantage and were used as a bargaining chip.
Fault allegations and grounds trials heightened the conflict, increased the cost, and prolonged the duration of matrimonial cases. As a result of the no-fault divorce legislation, valuable judicial resources will no longer have to be wasted on litigating whether or not a marriage should be dissolved. No-fault divorce will come into effect on October 14, 2010 and applies to divorce cases commenced on or after the effective date. The legislation will not be retroactive.
Temporary maintenance awards have been unpredictable and inconsistent. The law has been amended in an attempt to alleviate these problems and help the non-monied spouse sustain himself/herself during the pendency of the matrimonial litigation.
The new law sets forth a formula to calculate awards of temporary maintenance. However, upon a finding that the presumptive amount of temporary maintenance would be unjust or inappropriate, the court may deviate from the guidelines and adjust the amount of the temporary maintenance. In addition, the parties can also agree to deviate from the temporary maintenance guidelines in a validly executed agreement or stipulation.
The new legislation also amends the factors that are to be taken into account in determining postdivorce maintenance awards.
Counsel Fees and Expert Fees
Presently, the burden of proof in a counsel fees application is on the moving party. Under the new legislation, the burden of proof shifts to the monied spouse. There will be a rebuttable presumption that counsel fees shall be awarded to the non-monied spouse.
The court may also direct the monied spouse to pay the expert fees of the non-monied spouse. The reforms attempt to level the playing field and place spouses on a more equal footing throughout the divorce proceeding. Significantly, it will now be easier for the nonmonied spouse to obtain counsel fees at the onset and during the matrimonial litigation, rather than being forced to wait until the conclusion of the case