Lemondrop

The New York State Senate passed the No Fault Divorce Bill on Tuesday, making New York the 50th (that would be last) state in the country to join the "irretrievable breakup" club, a full 40 years after California passed the first no-fault laws. What's the deal with that?

We asked Carol Sanger, a professor who specializes in family law, gender, and how laws relate to our culture at Columbia Law School to explain what this bill means for married ladies.

Lemondrop: Hi, Carol. So, what is "no-fault divorce" exactly?
Sanger: The new law changes divorce in New York by allowing couples to get divorced without one person having to prove that the other one is "at fault" for the breakdown of their marriage. If you go back 40 years, every state had a fault-based divorce law. This is because the general policy in family law was that divorce is bad and marriage is good. And one way to keep people married is to make divorce hard to get. One way to make a divorce hard to get is to say you can only get divorced if you are divorcing for a state-approved reason, like adultery, insanity, or extreme cruelty. That's why, when you see divorce in old movies, it was so adversarial: There was a plaintiff and a defendant, and the defendant had to have done something wrong.

But let's say you're just in a very, very unhappy marriage but nobody has committed adultery or gone insane or been abusive. Under fault-based divorce law, you would be out of luck -- unless one of you actually went and had an affair, or you agreed to lie about it and say, OK, husband, if you want out, you'll need to pretend you had an affair and lie about it in court. This is where we would get very elaborate situations of a guy going to a hotel with someone who wasn't his wife even if they weren't sleeping together, or a wife who wanted grounds for a divorce going to the trouble and expense of hiring a private investigator to catch her husband doing something like that.

Over time, people started to ask, how does this impact the integrity of the legal system? Should we have a system that encourages people to lie, especially when everyone more or less knows they're lying and we have to pretend we don't? In no-fault divorce, it's much simpler and more honest. The couple can just say that their marriage has irretrievably broken down and that's that.

It sounds so much more straightforward. Why did it take New York so long to change the law?
The biggest reason is that the Catholic Church and other religious organizations that discourage divorce have a lot of political influence on the New York legislature. They oppose no-fault divorce because we have seen divorce rates go up when states introduce the law, at least initially [because couples who haven't been able to divorce before will scramble to do so] and they don't want to make divorces easier to get.

But there's also what some would call a feminist argument against no-fault, which is that under the fault-based system, the division of property and custody of children often followed the fault. So if the husband had an affair, he would have to pay more and be less likely to get the kids. Under a no-fault system, the rules for who gets what are less clear, and [organizations like NOW-NYS] worry that women will lose out.

No-fault divorce also means that either party can leave the marriage at any time, since all they have to do is swear in court that the marriage has broken down irretrievably. It used to be that the other person could contest that and say, no I don't think it's irretrievable, I want to work on it. But the New York law, if one party swears to it, that's enough. So people who don't want to get divorced may find themselves divorced anyway. And we'll just have to wait and see whether that aspect of the law influences behavior - will it make people work harder on their marriages because they know the other person can get out at any time? Or will that make people ask, what kind of commitment do we really have here?

That could be problematic especially in that classic midlife crisis kind of divorce, where the guy leaves the mother of his children for his secretary. What can women do to protect themselves?
That's a great question. Some people think, gosh, this will be really bad for women because we can't say, "OK, I'll grant you a divorce, but you cheated so you give me the house and custody of the children." And it's true in all segments of society that women are generally the less moneyed member of the couple, the one who is more likely to have chosen the marriage as a substitute to a job or quit working to take care of children, which puts them behind in terms of earning power.

So what you're really asking is, what can women do to protect themselves from ending up with less money? And that shows how divorce law raises all kinds of cultural questions, like why are women more often the spouse who stays home? What this law really says is everyone has to kind of wake up a little bit and say, OK, I guess I'm not going to be able to rely on my marriage for financial security forever. This can be a good thing, but it's very scary if you have a marriage that's ending after 30 years.

But are there ways that no-fault divorce can help women?
Yes. For starters, the New York bill states that divorce will only be granted once all the economic issues are resolved and there has been "equitable distribution." We don't want a whole bunch of women getting divorced against their will and becoming poor in the process, so this should help ensure that you can't get divorced until property has been distributed equally and custody issues are resolved. In the past, judges and family courts have had a huge amount of discretion in this area which has made divorce something of a crap shoot - it shouldn't depend on whether you draw a sympathetic judge or not. We need much clearer guidelines about who gets what.

It's also important to remember that fault-based divorce is really a form of social policy, where we let the state dictate what makes a marriage. The truth is, you might have a very viable marriage even if a spouse has committed adultery. And a law that says OK, one affair and he can boot you out might be seen as a disincentive to keeping a marriage together. Meanwhile, there are important social benefits to letting people out of a marriage when they're really, truly unhappy, even if that unhappiness doesn't fit into the idea of "fault."

So for women who want to get out of a bad marriage, divorce is going to be easier to get. They won't have to lie. And it will also cost less, because lawyers have a lot less to do when you don't have to prove fault. This is especially good news for poor women who might otherwise have thought they couldn't afford to start divorce proceedings. In many states, if you're getting divorced and you don't have children or own any property, you don't even have to go to court -- you can just file the paperwork. The process is much more streamlined, which is good for everybody, because let's face it, no matter how easy we make it, people don't like getting divorced.