by Abby Tolchinsky and Ellie Wertheim
July 30, 2010
Sometimes conventional wisdom is right. The evolution in the matrimonial law reflects the changing roles of men and women in marriage and their property relationship and obligations to each other. In so much as the law manifests this cultural shift, it should therefore incorporate prevailing values and sense of fairness. Three bills that would significantly change matrimonial practice for the better have been passed by the New York State Assembly and Senate. They now await Governor David A. Paterson’s signature.
By now much has been said and written about the potentially seismic shift in the state’s matrimonial law.1 Formally stated, the bills are: S3890A/A9753A, an act to amend the domestic relations law, in relation to no fault divorce; S4532A/A7569A, an act to amend the domestic relations law, in relation to the payment of counsel and expert fees in matrimonial actions; S7740A/A10984A, an act to amend the domestic relations law, in relation to interim spousal support and post-marital income obligations; and to repeal certain provisions of such law relating thereto. This article will explore, in broad strokes, the likely effects of these bills on matrimonial practitioners and litigants. More specifically, we will address ways in which mediators and their clients may experience these changes.
No Fault Divorce
Practitioners across the state have had to explain to countless clients that New York State is the only state in the union to require grounds for a divorce. As it now stands, parties must demonstrate either a year-long separation, legally negotiated and drafted, or a measure of blame, whether sexual or physical abandonment, abuse or imprisonment, among others. As noted in the justification section of the Senate bill, “many people divorce for valid reasons that do not fall under these classifications. They are forced to invent false justifications to legally dissolve their marriages. False accusations, and the necessity to hold one partner at fault often result in conflict within the family. The conflict is harmful to the partners and destructive to the emotional well-being of children.”2
Indeed, as practitioners, clients and judges have noted, the additional onus of assigning and proving blame for the dissolution of a marriage not only burdens the court docket but is an emotional hurdle, as well.
Mediators working with divorcing couples strive to strike a balance between the goal-oriented process of arriving at a separation agreement while simultaneously creating a forum in which parties can reflect on elements of their conflict as they pertain to the negotiations. Sometimes, this may mean airing experiences of what has transpired in their relationship; sometimes space is created for apologies that clear the way to finding common ground going forward. Particularly for motivated parents and parties with long-term marriages, negotiations tend to focus on the importance of children’s well-being and parties’ quality of life in their retirement years.
In the context of no-fault divorce, the issue of “blame” may already have been aired in the course of negotiating the terms of the divorce, whether financial or parenting arrangements. That said, the foundation of mediation is a setting of self-determination and autonomy, for each party, which is necessarily undermined when the state dictates that couples must discuss and assign fault.
While in mediation the technique for negotiating does not invoke overpowering the other’s point of view, the conversation with couples about how to file for divorce almost never seems relevant to the negotiations at hand, nor is it a reflection of their view of the conflict, their hopes and needs in crafting a meaningful settlement. If anything, after efforts to find compromise and understanding, the necessity of laying the blame at someone’s feet is often a jarring non-sequitur, interfering with the connection that develops between parties during the negotiations and with the mediator’s connection with the parties. Interestingly enough, even after several negotiation sessions with a couple, mediators may not know if there has been some definitive “bad act” which has led the couple to separate.
There is a sense of intimacy and nuance to why people divorce that cannot possibly be captured in broad-brush categories such as abandonment and adultery. In mediation, we endeavor to acknowledge those complexities to the extent that they inform the foundation upon which decisions rest. For example, it may very well be the case that the requirement to file for divorce under constructive abandonment has been legally met. Nonetheless, that is merely a symptom of what may be a larger breakdown in the marriage which itself may or may not be relevant to how the assets of the marriage are distributed, how the children are raised and provided for.
More often, conversations in mediation about the grounds for divorce focus on three core issues that have nothing to do with the grounds themselves. The first is health insurance. As long as a couple is still legally married, they can remain on one another’s health insurance plan. This may be the deciding factor for choosing a one-year separation as the means to obtain a divorce. Similarly, the one-year separation may allow the couple to file joint tax returns. The tax savings provided by filing in this manner is a consideration. Finally, the difference in timing between filing on fault grounds versus the one-year separation may be an important consideration for those who seek “closure” or for those who wish to remarry. Others may wish to avoid a perceived stigma attached with the fault construct.
As mediators, we would go so far as to say the no fault bill is still insufficiently broad. That is, parties who can peacefully negotiate their agreement out of court may not wish to assign blame in any form—even by assuming the roles of plaintiff and defendant. Rather, for these couples, it would be a relief and a respectful choice to have “mutual decision/neutral” on the list of boxes to check off.
The second bill pending seeks to equalize the resources of parties who are in litigation by creating a rebuttable presumption that the monied spouse will pay counsel and experts’ fees. This presumption provides a profound protection for the non-monied spouse which endeavors to create balanced processes and, ideally, outcomes. Capitulation for fear of draining precious financial resources ought to no longer factor in to pursuing one’s rights. Similarly, the motivation to run up dramatic bills knowing that the non-monied spouse will have to “quit” should no longer serve as an effective trial strategy.
The proposed bill reflects, if not similar content, then similar spirit to what mediators develop in mediation sessions: a balanced forum in which to pursue one’s understanding of a fair result, while creating an incentive to act in good faith. In mediation, we look to the parties’ motivation to choose the process, whether it is to save money, remain communicative as parents, or to preserve a measure of peace during a difficult time and thereafter. Ironically, a more affluent party who may have had an upper hand in terms of representation may now consider mediating since the financial advantage no longer applies.
The third bill awaiting the governor’s signature is the interim post-marital income bill (hereinafter PMI). For many years, attorneys, judges and parties have been befuddled by the range of maintenance awards and durations, as the determination is based not on a knowable formula but on a host of subjective factors. In contrast, the Child Support Standards Act (CSSA) has provided a structure by which distinct percentages and readily calculable amounts of support are computed, not to mention duration based on age of emancipation. There is, of course, an “unjust or inappropriate” provision under which the sums may be adjusted.
In mediation, the CSSA demonstrates a societal standard of fairness and a frame of reference, often a starting point for a more fine-tuned discussion of what the children need and what the parties’ financial resources allow them to provide. For some parties, however, it is a relief to be directed by the law to a knowable endpoint. Yet for many other divorcing parents, their personal needs and interests, along with those of their children, may lead to a different number, as the CSSA seems far afield from their perception of the family’s financials. Mediators explore the values that inform these deviations from the CSSA formula while also testing the feasibility of the proposals against the reality of the net worth statement and the family’s monthly budget.
The parallel with PMI is plain. In mediation as in every divorce forum, couples invariably are anxious to know what the exchange of support will entail. Just as matrimonial practitioners, mediators and parties are not bound by the CSSA formula, so too will we all be able to work outside of the restrictions of the PMI guidelines. However, for couples wishing to rely heavily on what a court-ordered result may look like, or who simply are looking for a starting point for their negotiations, the proposed bill is a welcome addition. Because this bill applies only to interim relief, it does not contain guidelines for duration of maintenance. In this sense, while couples may now be able to sue one another for divorce without assigning artificial blame, their long-term financial obligations to one another remain subject to the 12 factors of the Domestic Relations Law.
Abby Tolchinsky and Ellie Wertheim are partners at Family Mediation.
1. See, e.g.: http://www.nytimes.com/2010/06/17/opinion/17coontz.html.
2. Justification, S3890A.