Has New York’s No-Fault Provision Increased the Divorce Rate?

by Petra Maxwell on August 15, 2011

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The NY Post recently reported that since the new no-fault divorce provision took effect, divorce filings in New York State have increased 12%. Some people are pointing to this as an indication that no-fault laws make people more inclined to divorce. This isn’t necessarily true.

An important factor in the fluctuations in divorce filings may be the economy. Many divorces were put on hold when the recession hit. As confidence in the economy began to improve, those who waited to get divorced for financial reasons finally felt they were ready to file. A University of Oklahoma study conducted back in 1998 also found that a state’s no-fault laws impacted the rate of divorce filings.  However, the study went on to show that in those no-fault states where the rates of divorce had increased, the increases were significantly linked to gains in family income, showing that as a family has more money to spend, separation and divorce becomes more possible.

Where To Point the Finger?

I believe, as the Oklahoma study points out, a variety of factors come into play when a couple decides to postpone or give the green light to filing for divorce.  I’ve spoken to numerous couples who stated, for example, that given the New York City real estate market, they couldn’t afford to divorce and sell their property so had to wait until the market turned around.  Others say that they simply can’t afford the cost of childcare and two New York City apartments, so they’ll tough it out until rental rates drop or their incomes increase so as to permit one of them to move out. And many couples chose to stay married, although separated, simply so that one spouse can maintain healthcare coverage under the other’s company family health plan.

Just prior to the very recent economic shakeup in Washington, Americans were sensing a mild improvement in the economy and confidence in the market was improving.  Some suspect that couples were beginning to feel financially safe enough to make the move towards separation or divorce.  Coincidentally, the recent changes to the New York Domestic Relations Law passed in October 2010 law providing for no-fault divorce also make divorce more accessible and more affordable for many couples. By allowing couples to choose no-fault or ‘irreconcilable differences’ as the grounds for their divorce, there’s no longer any need to debate or prove grounds such as adultery, abuse or abandonment, which used to consume a significant portion of a lawyers’ time. Any divorce attorney will tell you that he or she spent hours prior to this change in the law wading through the various options for grounds for divorce, passing the tissues as they extracted the information from the clients, trying to construct a well-organized complaint that would be legally sufficient. If the issue went to trial to prove the grounds for divorce, it was extremely costly. Couples who found divorce too expensive in the past now have an option that is a little more streamlined and budget-friendly.

The recent change to the New York statute providing for legal fees has also made it more possible for spouses of lesser means to take the initiative to file a petition.  Under the new law, the spouse making substantially more money may be required to shoulder the cost, or a portion of the cost, of the divorce.  The intention is to make sure that the lesser earning spouse does not stay trapped in a bad marriage just because he or she can’t afford to file for divorce, and to ensure that both parties have access to competent legal counsel or mediation.

There are always a multitude of reasons why a couple decides to divorce and it’s unlikely a change in the law actually encourages people to go out and get a divorce if it wasn’t something they were already considering.

What’s your take on the recent increases in the divorce rate?

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