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New York - The state has finally passed an alternative no-fault divorce law.

Like most states, New York requires grounds (reasons) for divorce and resolution of financial matters and minor children-related issues. Under existing no-fault law, a separation agreement and one-year waiting period constitute the “grounds,” with the other issues resolved within that agreement.

If either spouse does not want a divorce, or if they cannot agree on the other issues, they can sue in New York State Supreme Court.

Currently, once a spouse requests judicial intervention from the court, the game changes and “fault” must be established. New York is notorious for its rigid grounds for divorce, and difficulty of proof. It was not unusual for couples to live apart for years, unable to reach an agreement, only to be denied a divorce in court, or obtain a divorce, but with unexpected financial rulings. Most often this happened when one party had a monetary advantage and knew his or her spouse would have a tough time getting a divorce.

Under the new no-fault law, anyone who wishes a divorce, but has an uncooperative spouse, can apply to the court, and be granted a no-fault divorce without grounds other than the marriage has irretrievably been broken down for at least six months. This part seems reasonable, as it eliminates the “hostage” situation so many married New Yorkers have, or might have, experienced. However, as I understand it, the new no-fault law requires that the court (meaning the judge) decides all the financial, property and custody issues.

As a financial educator and former divorce consultant, I see a huge glitch in this new legislation. In each case, the presiding Supreme Court justice will unilaterally make life-altering permanent decisions. This is the same procedure under our current law. I have seen dozens of judges’ rulings that clients have shown me that I view as patently unfair or mind-numbingly arbitrary, or simply based on an apparent lack of understanding of money and finance. Similar cases often receive wildly dissimilar rulings, depending on the judge.

Judges are trained in law, but usually not in financial planning. To them, it may be “case closed,” but the futures of litigants and their children are forever impacted, sometimes irretrievably. Judges are also humans, and susceptible to bias when there is little restraint or transparency. As I understand the new law, at least future income of both parties will now be taken into consideration.

It is my fervent hope that our state Legislature will do the following: Limit the power of judges regarding division of property by establishing fairer guidelines, or replace our “Equitable Distribution” system with Community Property law. Let both parties submit proposals by professional financial advisers that judges must be required to consider, and allow litigants to return to court within a reasonable length of time should it be found that “inconsistent” financial information was submitted, without having to go through the costly, and usually unsuccessful, appeals process.

Otherwise, you may now be able to get a divorce in New York when before you couldn’t but also not expect a better financial outcome than under our current system.

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