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In which I get political

November 9, 2010

I’m no fan of David Paterson, but I think his one lasting legacy for the kids of New York State will be his having signed the no-fault divorce law, and that makes him a hero for children. NY State was the only state (the only state, think about that) that forced divorcing parties to list a reason that was compelling enough for the state to grant them a divorce. There were only six reasons, and some of those were pretty gruesome (“cruel and inhuman treatment,” confinement in prison, and the always-popular adultery). You could, technically, get a divorce that didn’t force anyone to make accusations, but the only way to do that was to go through the entire process of writing and signing a settlement (which anyone who’s done it knows is the emotional and logistical equivalent of birthing twins through your nasal passages) and then you sign a separation agreement which you sit on for a full year and only then can convert into an actual, legal divorce. Which means it could take 3-4 years for the divorce to be final.

Groups that lobbied for keeping fault-based divorce claimed that allowing no-fault divorce would allow couples to rush into divorce, or would allow one party to divorce another unwilling party. I think that’s all theory. Of all the people I’ve known who got divorced and had kids, all of us went through years of anguish over the decision before we made any move toward a final decision or making it legal. This whole myth of “oh, la la la, things are better on the other side” is, I feel, yet another myth perpetrated by moviemakers and magazines. Talk to some real moms and dads who had to ruin their kids lives to save them from repeating the same dysfunction for another generation. We didn’t take that lightly. And you can’t divorce someone without their consent.

What fault-based divorce did that hurt children probably more than we all will ever know is force the parents not only to protect their own reasonable interests (and by extension, their children’s interests–it does not benefit children to have one parent destitute while the other is wealthy, nor does it benefit the children to have a non-abusive parent with limited access to the children) but to assume a truly adversarial stance toward the other parent. Even if you mediated your divorce, as LOD and I did, there was no way to accept equal blame and just spit and shake on our decision. One of us was going to have to file against the other. In a legal, public document, one of us had to accuse the other of having done something horrible.

How could that NOT affect our process?

How could that NOT affect the way we felt about our children’s other parent?

We couldn’t even begin to heal or to co-parent effectively until the albatross of blame was out of the way. Imagine how much better things would have been, how much more cordial at drop-off and pick-up, things could have been if the law didn’t force us to assign blame and make accusations? (I think it’s telling that a prominent NY State divorce lawyer wrote his first blog piece for HuffPo Divorce about how no-fault divorce is better. Presumably he’d make more money with fault-only divorce, so his endorsement of no-fault tells me it really is bad for kids and families if he’s willing to give up profit.)

I am so happy that all the kids whose parents are going to divorce in New York State from now on will have a chance to have parents who can use the process of divorce to work toward creating a parenting relationship that’s better than their marriage ever was. Yes, there are still going to be immature and selfish couples who can’t work together to divorce any more than they could to be married. And there will still be situations in which one party really is to blame. But there aren’t going to be kids whose parents are pushed by the law to hate each other when they don’t really. And that’s a win for everyone.

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26 Comments leave one →
  1. November 9, 2010 8:06 pm

    You are so right about the need for parents to be able to cooperate with post-divorce parenting. Interestingly, studies show that children are amazingly resilient, and can bounce back from the temporary trauma caused by the actual divorce. Where the real damage is done to children is when they see that their parents are unable to move on with their lives in a positive way. What children learn when parents continue to argue and fight after the divorce is over is that problems can’t be solved. This is a sad world view for young people to start off their own life with.

    I liked your post so much that I bookmarked it on several social bookmarking sites.

  2. November 9, 2010 9:47 pm

    We don’t live in NY, and circle of friends has so far been divorce-free, so this post was a real eye-opener for me. The process sounds hard enough without the state making it worse. I’m glad things have changed! And thank you for your thoughts on this issue.

  3. November 10, 2010 1:56 am

    I know this may not be something that you and LOD may be able to talk about personally, but I’m interested in knowing more about revising guardianship arrangements during a divorce… does a divorce proceeding change who cares for the kids in case of accident? It is currently a little contentious in my family (we are married) and I can envision divorce proceedings blowing the whole simmering argument wide open. I’m wondering how couples who are mediating get this done peacefully.

    Kudos on the post… it’s not something I’d thought deeply about before tonight.

    • askmoxie permalink*
      November 10, 2010 11:58 am

      Trope, during mediation you work that stuff out. If I died LOD would be their only parent, so if something happened to him it would be the people named in his will. If he died I’d be their only parent so if something happened to me it would be the people named in my will. So essentially it’s attrition-based, which is grisly, but, yeah.

  4. November 10, 2010 11:39 am

    I disagree with your post completely. I think that your logic is seriously flawed. No-fault divorce laws are absolutely not a “win for everyone”. I am losing hugely and so are our two young children. My STBXH should be considered at-fault and should be forced to make me and our children financially comfortable in our post-divorce lives. I was a stay-at-home mother for six years who has been forced to commute 135 miles to work in my former field and now must live paycheck-to-paycheck.

    I’d like you to please explain what you mean when you write, “… you can’t divorce someone without their consent”. My husband is divorcing me without my consent. He had an affair and deliberated about what to do with our marriage in private therapy, without cluing me in to his internal struggle and without going to couples therapy. That is just plain W-R-O-N-G; he is at fault and that should be duly noted by the system. It’s not as though we are having a happy divorce simply because we live in the no-fault state of Massachusetts. If fault does exist in the marriage/divorce, there will be rage and devastating grief and a no-fault system will certainly not change that acrimony. However, it will change what happens to the spouse who has been victimized and it isn’t for the good.

    • askmoxie permalink*
      November 10, 2010 11:49 am

      Penelope, don’t you have to sign the settlement? He can’t get a legal divorce from you (unless there’s something I don’t know about MA law) until you’ve both signed the settlement. So he can’t divorce you until you’ve agreed on the terms enough for both of you to sign. If you don’t consent to the divorce, then don’t sign. If you sign, you’ve consented.

      Fault doesn’t mean that you’d get a better deal financially, either. I’ve known plenty of people who filed on the grounds of adultery and ended up having to pay their adulterous exes spousal support. A fault-based divorce doesn’t always mean that the person at fault has to pay.

      I am so sorry that you didn’t want this divorce. As another mother who lives paycheck-to-paycheck, I sympathize with that, and with a horrible commute. But in a fault-based system, you’d be filing against him and would not be guaranteed to get anything more than equal custody and the baseline child support based on the equalizing formula.

      • mom2boy permalink
        November 10, 2010 12:25 pm

        Divorce sucks.

        From a MA lawyer’s website. “Under the law of Massachusetts you may file a divorce complaint as a contested divorce on the basis of fault of the other party, (for instance, adultery or cruel and abusive treatment), or on the ground of irretrievable breakdown of the marriage. If you proceed with a contested divorce, the Court cannot enter a Judgment of Divorce for at least six months after the filing of the complaint. Moreover, as a practical matter, due to the considerable volume of cases pending in the Probate and Family Courts, it is likely that resolution of a contested divorce case will take well in excess of six months. As an alternative procedure, you and your spouse may file for an uncontested divorce by filing a Joint Petition for Divorce. To do so, you and your spouse must first reach an understanding on all relevant issues, (for example, the division of property, co-parenting arrangements, and extent to which, if any, child support or alimony shall be paid by one party) and have executed a comprehensive written agreement incorporating all of the terms.”

      • beachgal permalink
        November 11, 2010 1:30 pm

        I’m in a situation very similar to Penelope in a no fault state and it sucks. I’m still learning about the process but from what I understand there is no requirement to sign a settlement agreement – that’s only if you want to avoid going to court. And in the event you can’t agree, a court will decide who gets what (kids, child support payments, marital support, etc.) whether you like it or not. And any wrong doing on the part of either spouse (short of abuse) will have no bearing whatsoever on how that plays out. For many women (or men) who change their lives completely for the sake of the family’s well being (give up a career, move to another state, etc.) only to be left alone and insecure (both financially and emotionally) without sufficient recourse, it just seems incredibly unfair.

      • askmoxie permalink*
        November 12, 2010 12:01 am

        Beachgal, it is unfair to be left without financial recourse. I hope that you have a good lawyer who can fight for you to get a good settlement. Fault divorce (as I was told by four lawyers during my divorce process in NY state which was a fault state at the time) also does not guarantee financial recourse. There is no guarantee anymore.

  5. askmoxie permalink*
    November 10, 2010 12:44 pm

    mom2boy, can you get a divorce ruling in MA without having a settlement signed by both parties if there are children involved?

    • mom2boy permalink
      November 10, 2010 2:31 pm

      “If you don’t sign the papers, the divorce will be considered contested. The issues may be resolved by a judge instead of by agreement of the spouses. Without cooperation, the divorce is a contested matter that is longer and more expensive. However, your spouse can’t stop you from getting a divorce.”

      http://www.divorcesource.com/MA/ARTICLES/pransky2.html

      This is internet information, not legal advice, but it seems as though, fault or no-fault, divorce isn’t something you can will away by refusing to participate in the process.

      • askmoxie permalink*
        November 10, 2010 9:47 pm

        So by not signing you’re contesting it. Or you could just contest it to begin with, no? If you contest a divorce, then does it matter if it’s fault or no fault? I just don’t see how filing no-fault is easier if the other person doesn’t want the divorce.

  6. November 10, 2010 2:29 pm

    Thank goodness. Before I was married to Mr. PunditMom, I was married for a short time to a person who, shall we say, didn’t know how to play nicely when he was mad. I was very young (19) when I got married the first time, and eventually knew I could not stay in the marriage. But we lived in New York State. The “good” news for me was that there were plenty of details about that to get me over the hurdle of “cruel and inhuman treatment.” But I will never forget being worried about being able to get the divorce when the lawyer told me it would be a problem if the judge didn’t believe my story.

    I am so glad no one else will have to worry about that.

  7. November 10, 2010 6:11 pm

    Thank you both for putting energy into what I’m going through. I appreciate your consideration and thoughts.

    • mompluskid permalink
      November 10, 2010 9:31 pm

      Just want to give you a cyber-hug. You are not alone, even if you feel that way right now.

    • askmoxie permalink*
      November 10, 2010 9:45 pm

      I’ve been thinking about this all day. Why are you commuting so far? If he really wants the divorce, for him to let you move to where you can support yourself without a heinous commute.

  8. Kris permalink
    November 11, 2010 5:17 pm

    Hi — this isn’t really a comment about this particular blog, but. Could you guys write a blog about dating after your divorce, the eventuality of your moving on and getting remarried and what you think the prospects are for being civil and managing to “blend” families, etc. at that point? I ask this because I don’t know very many people who do a successful job of co-parenting, so you guys seem like kind of a rarity. Or rather, I know people who divorce and seem to do an okay job of co-parenting, UNTIL one of them gets re-partnered up, at which point the sh*t hits the fan. Would love to hear your experiences/reflections/fears about this.

  9. mom2boy permalink
    November 11, 2010 5:32 pm

    Two words: Prenuptial Agreement. Not even kidding. It’s marriage insurance. Sure it only kicks in if there is a divorce, but life insurance only kicks in if there’s been a death.

  10. November 11, 2010 5:53 pm

    Great article – the reality of fault v. no-fault was all too clear in my daily practice prior to it’s enactment. Both spouses and children alike (and, indirectly, their attorneys) were all affected by the “you did this to me” aspect of divorce in NY. Rather than force a spouse who no longer wanted to be married to “prove” divorce grounds or, with a wink and a nod from the judge, lie about it in open court, spouses can move on with their lives. Rather than allow divorce grounds to become an element of the financial and child custody negotiations, the legal system can hold it’s head high and allow fairer negotiations of settlement to take place. Will I lose business because people will not contest grounds – NO! As my next post on http://www.huffingtonpost.com/divorce will discuss, I use a flat fee system, not hourly – so, whether or not people fight for 3 months or 3 years, I do not charge extra. Keep up the good work NY (and askmoxie and LOD)!

    • askmoxie permalink*
      November 11, 2010 11:58 pm

      Hmm, flat fee is an interesting concept!

      It seems like people think that a fault-based divorce automatically means that the spouse who was at fault (either by cheating, or just by wanting to leave) is going to be penalized in the settlement or custody or in another way. But it’s my understanding that, unless there was physical abuse that would affect child custody, even a fault-based divorce the spouse who was “at fault” will probably not be penalized financially. By penalized I mean required to pay more than the formula that tries to give more or less equal financial resources to both parents to take care of the kids.

      • November 12, 2010 12:31 am

        In New York, you can still allege fault – no-fault is just an option. However, if one were to allege adultery, there would be some effect on equitable distribution. However, that is a question left up to the trier of fact.

  11. lolismum permalink
    November 12, 2010 1:58 am

    Wait, a man in a traditional family can pack up and leave his reluctant wife and young children to shack up with someone else and the law does not favor the wife+children even a little? You get charged to leave a mobile phone contract and you cannot be charged more for single-handedly leaving a life contract? What is the logic? Marriages and marital sacrifices don’t matter? The wife was a shrew and drove the guy to adultery? The house was a mess and she was supposed to you know, iron his socks and cook a good stew? What? I thought there was some general rule about ” supporting someone so that they can maintain the lifestyle they are accustomed to?” Maybe I watch too many movies.

    • askmoxie permalink*
      November 12, 2010 6:57 am

      Lolismum, it’s not automatic. The reluctant spouse needs to get a good lawyer to fight for things. In NY state I know each spouse is entitled to half of everything earned or started during the marriage, .but no one just hands it to you if you don’t ask for it.

      But also, what if the leaving spouse feels like they can’t tell the left spouse how they feel, or that they’ve said it but he other person didn’t want to listen? It’s not always as simple as “he left to shack up, out of the blue.” Humans need to be able to get out of harmful situations. We hope thy can do it in a way that’s not more harmful.

      Any SAH parent should not take things for granted. Fifty percent. Keep your resume up to date.

  12. MoxieMom in NY permalink
    November 12, 2010 12:00 pm

    I just found this blog. I used to be an AVID follower of AskMoxie.org and Laidoffdad.org years ago.
    I became—seriously—giddy upon finding this blog. Your voices truly embody so many of my feelings.

    I too, am divorced after 9 years, with 2 kids. I also live in NY, Upstate. I felt forced to get a contested divorce because I couldn’t trust my Ex not to continue manipulating me for the whole year our agreement would have to sit for No-Fault. I took “the blame” to ensure he would actually sign the papers. Our said something about “Abandonment for a continuous period of one year or more.” We divorced in May, and our lawyer never said we could do no-fault without waiting 365-days.

    We mediated and I made some HUGE consessions, again, to ensure he would go through with it. Lowered child support, conceeded other money for child-related things. Terrible, but it’s done. And I’m free. Thank the stars.

  13. November 15, 2010 7:14 pm

    Hmm. Several years ago I was the “at fault” person in a NYS divorce. I’d like to exchange it for a “no fault” divorce since my fault was that I wouldn’t let him move in with his girlfriend (which he did anyway). Thank goodness we didn’t have kids or assets.

    • askmoxie permalink*
      November 16, 2010 5:49 pm

      Yeesh. That was a dumb girlfriend.

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