Monday, March 8, 2010

NYS Senate Poised to Make Bad Decision for Women & Children: Action Alert

NYS Senate Judiciary Poised to Make a Very Bad Decision for Women and
Children. Please read this email carefully and take action to help
women and children in New York State.
The National Organization for Women-NYS
No-Fault Divorce
Sponsored by
NYS Assemblymember Bing & Senator Hassell-Thompson
A9753 (Bing) S3890 (Hassell-Thompson)

Take Action NOW!
Read below to see how you can take action.

Contact the NYS Senate Judiciary Committee. On Tuesday, March 9th, at
10:00 am, the Judiciary Committee is scheduled to vote on the No Fault
Divorce legislation. Divorce is complicated and
this Legislation is dangerous for women and children. In every state
where No Fault Divorce has become law, the results have been
devastating for women and children. Experts will tell you that the
reason this happens is that No Fault Divorce takes away the
bargaining power from women. This means that a husband/father can
literally walk away and leave women and children in a state of
Below is a complete list of the Judiciary committee. Just copy and
paste their emails into your address box and send an email to all of
them at once. Tell them that you opposed No Faut Divorce!,,,,,,,,,,,,,,,,,,,,,,
NOW-NYS strongly opposes A-9753/S3890. This bill has a large loop hole
in the wording. It states that "Except under exigent circumstances
placed on the record by the court, no judgment of divorce shall be
granted under this subdivision unless and until" certain conditions
are met. NOW-NYS questions this wording as we wonder who defines
"exigent circumstances" and exactly what these circumstances might be.
Further this loosely worded legislation leaves a large window for
abuse by the monied spouse (usually the husband).

New York is currently a fault state. That means that if you want a
divorce, and your spouse does not agree, you must have grounds. The
two most common grounds are cruel and inhuman treatment and

New York State also has one no-fault ground. It is a bi-lateral
no-fault ground. If both parties want to divorce they negotiate a
separation agreement, which is a contract spelling out all the terms
which a court would decide, such as custody, child support,
maintenance (formerly called alimony) and property division. Then
after living apart for one year, the agreement becomes the ground for
the divorce.

The NYS Legislature continues to consider proposals for unilateral
no-fault divorce. This amounts to "divorce on demand." Either party
can go into court, say the marriage has broken down, and get a
divorce. No grounds are necessary. Additionally, under all the bills
that have been proposed to date in New York State, fault would not be
considered in determining alimony, maintenance or property division.
Under all the proposed bills the judge wouldn't hear the facts,
behavior and circumstances that led to the break-up of the marriage.
Will the judge hear these facts in custody disputes? We are not sure.

Currently, separation and divorce are negotiated by couples. This is
how approximately 95% of divorce cases in New York are resolved: by
the parties themselves, not by the judge, without going to court. This
is the best possible process.

The proposed change in the law to no-fault would be for only
approximately 5% of parties who cannot or who refuse to reach a
settlement. Laws should not be change or passed for only 5% of the

No-fault takes away any bargaining leverage the non-monied spouse has.
Currently she can say "If you want a divorce I'll agree, but you have
to work out a fair agreement." That is not "blackmail" as has been
claimed by some no-fault proponents. Negotiating the terms of the
break-up of a partnership is the way partnerships are dissolved in the
business world. Women should have the same protection. Another benefit
of separation agreements is that couples can agree to terms that the
court cannot order. One notable example is child support until
graduation from college. The court may order child support only up to
the child's 21st birthday. Without a separation agreement with this
provision included, children are left to finish college under severe
financial hardship, or to drop out.

In fairness, any partner to a marriage should be provided with notice
that the other partner wants a divorce and given an opportunity to
negotiate the terms for the divorce. With "divorce on demand," not
only can the more-monied spouse begin hiding assets (which happens
even under our current laws), but this spouse can proceed quickly with
legal actions before the other spouse, with limited means, even has
the time to find and hire an attorney.

Who is pushing for no-fault? The push was begun by the New York State
Bar Association, whose wealthy clients just want out of the marriage
without negotiating an agreement. They would rather have the case go
to court to decide the issues of custody, child support, maintenance
and property division. Should domestic relations law be changed to
satisfy only the needs of wealthy clients or to help the legal
profession gain more fees? Current law encourages private settlements.
In contrast, the Bar Association proposal would flood the court with
cases. There is another downside: The Office of Court Administration
does a periodic study of gender bias, and they acknowledge that gender
bias against women still permeates the court system.

The Women's Bar Association has reversed its long standing opposition
to no-fault divorce and is now going along with the NY State Bar.
Attorneys in the Women's Bar Association have some clients who want
out of the marriage and have no grounds. But the Women's Bar
Association also says that women are doing so well financially they no
longer need the protection of fault grounds. However, on December 24,
2006, The New York Times published an article entitled "Scant Progress
Closing Gap in Women's Pay." The sub-title was "For College Graduates,
the Disparity Worsens." It doesn't seem that most women are doing so
well in the workplace.

A small number of attorneys who represent victims of domestic violence
want no-fault because their clients are being denied divorces by some
judges who tell them that the domestic violence they suffered is not
severe enough to be considered cruelty that would warrant a divorce
NOW-NYS has worked on the national and state levels to raise the issue
of domestic violence, to reduce its incident rates, and to develop
legal strategies under criminal and civil laws to help victims. New
York's domestic relations laws should not be changed to disadvantage a
majority of women, especially homemakers with children, because a few
judges are not following the law. It is the judges who have to be
changed or removed. We need thorough judicial education to enlighten
judges as to the meaning of domestic violence. Contrary to popular
belief, it doesn't necessarily mean a woman will appear in court with
black eyes and broken bones.

The National Organization for Women (NOW-NYS) has a long standing
position of opposition to unilateral no-fault divorce. Our opposition
is based upon the study of the harmful effects of no-fault laws on
women and children in other states.

We must look at the socio-economic standing of women in our society.
Women clearly continue to be the non or lesser monied spouse, as women
continue to give up careers and financial independence for the role of
housewife and mother. For this reason alone we must look closely at
how divorce affects the lives of women and children and the role that
the state should play to ensure that homemakers and children not be
left destitute after divorce.

In 1987, 17 years after California enacted the first no-fault law in
the country, California's Senate issued a report entitled Report on
Family Equity which found, among other things, that no-fault had
created "unintended hardships" for women and children.

Ten years later, in 1997, the prestigious Family Law Quarterly put out
by the American Bar Association published an article by Peter Nash
Swisher, Professor of Law, at the University of Richmond (Virginia)
Law School. Professor Swisher studied the effects of no-fault all over
the country. In the article he states that "when no-fault divorce was
first introduced in most states, a disturbing number of courts failed
to provide adequate financial protection to women and children of

Swisher goes on to say, "Consequently, many children of divorce have
suffered long-lasting psychological, as well as economic, damage
resulting from divorce. Indeed, a number of commentators have
concluded that the no-fault divorce revolution in America has failed."
Swisher recommends that, at the very least, even in states with
no-fault grounds, fault should be considered in maintenance and
property division, as it is in approximately 38 states.

Divorce reform is needed. However, NOW-NYS sees the most urgent need
as a strong bill regarding expert and legal fees. The party in control
of the finances should be ordered to pay meaningful expert and legal
fees to the other party during the divorce proceedings in order to
ensure both parties have a level playing field. Further, we must
ensure that the lesser monied spouse is covered with health insurance
and that any move by a party to hide assets results in meaningful
penalties to that party. Let's have both parties equally represented,
see how that works and then, and only then, consider unilateral
no-fault divorce.

Marcia A. Pappas, President

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