The “New” NY Divorce Law: What it is and how it impacts your decision to mediate

by Petra Maxwell on April 21, 2011

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Late last fall, New York became the last state in the nation to offer something akin to ‘no-fault’ divorce. After years and years of debate, a few new provisions were added to the NY State Domestic Relations Statute that impacts the grounds by which you can get a divorce, the payment of fees to get a divorce, and the provision of maintenance (or alimony) for the lesser earning spouse while the divorce is being negotiated.   I am asked all the time about what the new law entails, whether it’ll make getting a divorce in New York easier or more complicated for couples, and what it means for a NY mediated divorce.

First, let me give you a quick and dirty summary of how the law has changed since the new provisions went into effect last October:

1.  Grounds for Divorce – Before October 2010, a spouse who wanted to divorce was required to prove that the other spouse had committed a serious marital transgression such as adultery, cruel and inhuman treatment, imprisonment or abandonment.  At best, couples could agree to legally separate for a minimum of a year and, thereafter convert their separation agreement to a petition for divorce after the full year was up.  But as of last October 2010, couples were given another option.  Under the new law a spouse need only show that “the relationship between husband and wife has broken down irretrievably for a period of at least six months.”  When the divorce petition is filed in court the couple will be asked to file an affidavit stating that the marriage has broken down irretrievably for a least 6 months and that there is no possibility of reconciliation.  However, in order for the court to approve the petition, all other outstanding matters such as child custody, child support and distribution of property and maintenance, must first be resolved by the parties before the court will approve the petition and the marriage can be dissolved.

2.  Fees for Divorce – Last fall, Gov. Patterson also signed another bill favored by no-fault divorce advocates which may require the payment of counsel and experts’ fees to the “non-monied” party in a divorce action.  NY State law has always attempted to balance the playing field by forcing a higher earning spouse to pick up the tab or pay a portion of the divorce costs for the under earning spouse.  However, these costs could not be recovered until the divorce was finally settled in court.  Now, under the new law, those who earn less are permitted to recover their costs, or a portion of their costs, while they incur them, throughout the course of the divorce process.

3. Temporary Maintenance While Divorce is Pending – Finally, the Statute includes a provision for a more formulaic approach to the award of temporary maintenance payments to non-monied spouses as their divorce proceedings are pending and move toward finality.  As in all cases of maintenance, however, several factors are still taken into consideration by the courts when determining whether maintenance is appropriate.  For example, the length of the marriage, the education and earning capacity of the parties, professional sacrifices made by the non-earning spouse, what each was doing prior to the marriage, whether the couple has children and their ages and abilities, are all factors that the court will still consider when determining whether maintenance is appropriate.  There is never a hard and fast rule when granting an award of maintenance and a request can be denied altogether by the court despite the adoption of the formula.

So, let’s say you’re thinking about mediation.  How do the new NY Divorce rules stack up when you’re thinking about a mediated divorce?  Actually, I think you always do better in mediation – whether you have a complex case or not – for several reasons.  First, as you noticed, NY courts will not consider your petition for divorce unless they find that all other relevant matters such as child custody and support, property division and maintenance (if applicable), have been resolved.  In mediation, you will be asked to work together with your mediator on each of these issues, one by one.  Mediators are trained to help you brainstorm and resolve complex and challenging disputes around custody and parenting arrangements, property splits, pension plan and banking account assessments, real estate moves, and maintenance.  When all is said and done, your Lawyer/Mediator can draft a legally acceptable Stipulation of Settlement for you that will outline for the court all of the terms you’ve agreed to.  This will show the court that everything has been resolved; that you’ve dotted all the i’s and crossed all the t’s and are ready for divorce.

What if you’re earning less and need financial help while the divorce is underway? Again, my bias is for mediation.  First, mediation is a much faster process – and more cost effective too.  Both parties save time and money while participating in mediation then when hiring separate attorneys to litigate their divorce.  I have found that because of the significant cost savings, higher earning spouses are sometimes more willing to help in ways that they might not have considered because they no longer feel that they’re being “taken to the cleaners” by a “vindictive” spouse.  Further, a good mediator will draw out their clients’ top concerns very early on.  If temporary maintenance or help with mediation fees is foremost on your mind and is causing you stress, then your mediator should help you both review your finances, your household budgets and help you create an Interim Agreement that outlines how one can help the other manage until a more permanent solution is worked out.

If you have more questions about the new rules for divorce in New York, or how mediation can work for you – please give us call.  We’ll be happy to help point you in the right direction or match you with a screened and qualified mediator that fits your needs.



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