The Relationship Between the Parties Has Broken Down Irretrievably for at Least 6 Months.
Domestic Relations Law ("DRL) 170(7) now provides that a divorce may be obtained on the grounds that "the relationship between the parties has broken down irretrievably for a period of at least 6 months, provided that one party has so stated under oath." This ground for divorce may be alleged in conjunction with other grounds already existing under the DRL: cruel & inhuman treatment, adultery and abandonment. The reason for alleging additional grounds is addressed below.
Equitable Distribution Must be Resolved First.
The new DRL 170(7) states that, "no judgment of divorce shall be granted...unless and until the economic issues of equitable distribution of marital property...have been resolved by the parties or determined by the court and incorporated into a judgment of divorce." In other words, although the parties may no longer have to go through the exercise of proving fault by way of cruel and inhuman treatment, adultery or abandonment in order to obtain a divorce, the parties must still come to an agreement as to how to divide the marital property. Failing this, the the parties must litigate the division of marital property. Therefore the new statute does not necessarily save the parties from litigation. Since that is the case, the additional grounds (cruel and inhuman treatment, etc., addressed above), may be alleged as leverage if equitable distribution is going to be litigated.
Spousal Support and Child Support Must be Resolved First.
Similarly, the new DRL 170(7) states that, "no judgment of divorce shall be granted...unless and until the payment or waiver of spousal support and the payment of child support ...have been resolved by the parties or determined by the court and incorporated into a judgment of divorce." Once again, the parties must still come to an agreement as to how to handle spousal and child support. The waiver of support requires certain language to ensure its validity when done by agreement. Therefore, the new statute does not necessarily save the parties from the expense of retaining their own attorney to prepare the appropriate agreement. Further, if no agreement can be had, the support issues must be litigated. Yet, another expense.
Custody and Parenting Time Must Also be Resolved.
Like equitable distribution and support, above, all issues with respect to custody and parenting time must first be resolved before a court will enter a judgment of divorce based on the fact that the relationship of the parties has irretrievably broken down for the requisite time period. This means that in the case of a marriage with little or no assets and no support issues, there could still be litigation over custody and visitation if the parties cannot reach their own agreement.
And Don't Forget Counsel and Experts' Fees and Expenses.
The new DRL 170(7) also requires that the parties reach an agreement on these issues before the judgment for divorce will be entered. As there is a new provision under DRL 237 and 238 which creates a "rebuttable presumption that counsel fees shall be awarded to the less monied spouse," an agreement on counsel fees may be more difficult for the parties to negotiate. This lends itself to the possibility of litigation.
What at first blush appeared to be an "easy" out for those seeking divorce, such may not be the case when one examines the details of the new statute which requires that all matters between the parties be resolved before the judgment of divorce will be entered. Thus, it is possible that the statute's realistic application may only be for the very, very rare couple that is entering into a truly amicable divorce. But, if that is the case, can one truly swear under oath that the marriage has irretrievably broken down?
Additional resources provided by the author
Laws of 2010, Chapter 384 (Assembly Bill A9753A, Senate Bill S3890A) ("No Fault");
Laws of 2010, Chapter 415 (Assembly Bill A11576, Senate Bill S8391)(Counsel Fees).
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