Does Fault Matter Anymore In Divorce

In 2010 New York was the last state in the country to permit No-Fault Divorces. So after nearly 11 years of No Fault Divorce filings I still will have clients say that their spouse is at fault and therefore they should pay more or get less, have less decision making authority regarding the children, have to maintain health insurance longer and any other thought that is to one person's financial or emotional benefit.

Since NY has permitted No-Fault Divorce I can say with pretty good recollection that close to 100% of my firm's divorce cases since then have been granted based on No-Fault rather than the other still existing grounds for divorce: Cruel & Inhuman Treatment, Adultery, Abandonment, Constructive Abandonment and Separation for one or more years with a written agreement or a judgment of separation.

The reason that lawyers strongly recommend filing on the basis of No-Fault is that there are almost no defenses to the filing as long as NY has jurisdiction and the alleged breakdown in the relationship is of six months or greater duration. If a client files for a divorce claiming cruel and inhuman treatment and the other spouse denies the claim the only way the Court can decide the claim is to have a divorce grounds trial which is expensive, time consuming and only of value in certain situations.

NY Law does permit domestic violence to be a factor in deciding the division of assets (equitable distribution) and custody of the child(ren) of the marriage. Likewise, "egregious" which means truly horrible marital fault can also be a factor in deciding the financial outcome of a case. The Courts do not want to give an incentive to prove fault as a factor in distributing assets or in determining custody unless it rises to the level that a judge is shocked and outraged by what took place. More often than not the type of fault a client is referring to when I am asked that question relates to one person having an affair also known as adultery, or refusing a relationship with the spouse or emotional and verbal abuse (without physical abuse). The fact that an Order of Protection may have been issued is not by itself proof of outrageous fault. An Order of Protection may be issued because of a push, a shove, blocking a person from leaving a room, taking their cell phone, drinking, drug use, threats of physical violence, foul emails and text messages.

Whether the facts of a client's case will rise to the level where marital fault will make a difference in the outcome is entirely dependent upon the particular events of that client's marriage. If both sides have committed serious marital fault (beyond what judges all too often would hear from divorcing spouses) each person's behavior may cancel out the other person's behavior.

So fault divorce still exist in NY however they are requested infrequently and in most such cases by the time the case is settled the complaint is modified from a grounds allegation to a No-Fault allegation.