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What is No-Fault Divorce?

As common as divorce has become, most of us do not realize that the relative ease of dissolving a marriage is a relatively new development in family law, particularly in New York.  According to many interpretations of the available data, it is estimated that as many of half of all marriages end in divorce. Getting divorced can have a significant impact on almost every aspect of your life, including your living situation, your finances, your relationship with and ability to see your children, as well as your long-term financial security. As if these issues were not stressful enough, many people are also dealing with the breakdown of the primary relationship in their lives, which is almost always an emotionally difficult and taxing issue. With so much on the line, it is extremely helpful for people who are considering or currently going through a divorce to retain a professional and emotionally neutral Westchester divorce lawyer as soon as possible.

Whether you agree with the policy or not, states generally hold the position that they have an interest in preserving marriages whenever possible. As a result, historically an individual who wished to divorce a spouse needed to show “cause” for the divorce, also known as fault. Since California adopted no-fault divorce in 1969, all states have changed their laws to recognize this type of divorce, in which neither party is required to establish or admit fault. Before this change, some of the common grounds for at fault divorces were:

  • Adultery
  • Cruelty
  • Abandonment
  • Imprisonment

In 2010, New York became the last state in the Country to recognize no fault divorce by enacting Domestic Relations Law § 170(7). Under the new law, New York recognized a new justification for ending a marriage, commonly referred to as “irretrievable breakdown.” This allows a person to end a marriage if they are able to establish the following:

  • The relationship between the parties is irretrievably broken
  • It has been broken for at least 6 months
  • One of the parties must state under oath that the relationship is irretrievably broken

Of course, the party bringing the action must satisfy the residency requirements set forth in New York divorce law, governing where the marriage occurred and the length of time the parties have lived in the state. In addition to providing for dissolution due to irretrievable breakdown, the law also requires that certain marital issues be resolved before the court grants a judgment of divorce. The statute states that the following issues must be resolved by either the parties or the court and incorporated into the judgment before it is granted:

  • Distribution of marital property
  • Payment of waiver of spousal support
  • Payment of child support
  • Attorneys’ fees and experts fees
  • Custody and visitation of children

Coming to a favorable resolution regarding these issues can be difficult, particularly in a situation where the parties are acrimonious towards one another. Having a Westchester divorce attorney on your side can help ensure that your rights are protected and that you obtain the best possible outcome in your divorce. Even in an amicable divorce, it is helpful to discuss your options with an attorney who is familiar with New York divorce proceedings. To schedule a free consultation with one of our Westchester divorce attorneys, call Lynch Schwab today at (914) 304-4353.

Posted on December 26, 2013 in Divorce Attorneys