Earlier this month, New York Chief Judge Judith S. Kaye called for sweeping divorce reform. Did she seek innovative new ways to strengthen marriage? Was her major goal to protect women and children from the economic consequences of divorce?
No, of course not. A smart woman with her eye on the wrong ball, Chief Judge Kaye zoomed in on the difficulties the current divorce process imposes on the legal system.
The family law bar supports unilateral divorce because it makes lawyers' and judges' lives easier. Raoul Felder, one of New York's most prominent divorce lawyers (he handled Rudy Giuliani's most recent divorce), is an outlier: "I'm not a great fan of no-fault divorce," Felder told the New York Post. "It means that every man who has lots of money and wants to trade in for a new model doesn't have to go before a judge and explain why he wants to break not only a legal, but a moral and ethical contract."
Felder was recently joined by another surprising New York voice. Marcia Pappas, head of New York's chapter of the National Organization for Women, publicly denounced the proposed change as "a bad idea" and frankly "unnecessary." New York already has no-fault divorce. A couple can agree to divorce without alleging fault via a separation agreement, which automatically becomes grounds for divorce (by either party) after one year. What New York currently lacks is unilateral divorce -- and good thing, too.
"The problem with unilateral no-fault divorce is that it hurts women by removing the incentive for the moneyed spouse (who is usually the husband) to make a settlement," Pappas writes, "instead of negotiating with a dependent spouse -- whose only leverage for avoiding an impoverished post-divorce life for herself and her children may be her assent, or lack of it, to divorce." Or as one woman I know, whose husband's midlife crisis included walking out on her and the kids, noted with satisfaction after her most recent trip to her lawyer: "I have grounds, and he doesn't."
That means, if the wealthy guy wants a divorce, he's going to have to negotiate with the woman he married, not just issue ultimatums.
Pappas also points to the research that unilateral divorce reduces women's economic well-being. A study in Connecticut, she writes, showed that under unilateral no-fault divorce laws, only 37 percent of women were awarded the marital home, compared with 82 percent under fault divorce.
Advocates say unilateral divorce will make divorce easier, faster, cheaper and less acrimonious. "Divorce takes much too long and costs much too much -- too much money, too much agony, too hard on the children," Chief Judge Kaye said, according to the New York Law Journal.
Others disagree. By shifting nasty litigation to child custody grounds, unilateral divorce may make divorce even uglier. "Nationwide, unilateral divorce has produced more divorces, longer divorces, uglier divorces," says John Crouch, a Virginia divorce lawyer who is president of Americans for Divorce Reform (www.divorcereform.org), which works to bring to other states the kind of marriage law New York is about to abandon.
Contrast Chief Judge Kaye's position with that of another justice, Georgia's Leah Sears, the only African-American woman chief justice. According to the Atlanta Journal Constitution, she recently called for a new judicial commission to reduce out-of-wedlock births. "People who are married have made a deeper commitment to their families," said Chief Justice Sears. "There's going to have to be some societal pressure to make that commitment." Meanwhile, the Georgia legislature has just passed a new law expanding waiting periods for divorce.
New York more backward than Georgia?
Earth to Chief Judge Kaye: Unilateral divorce is a bad idea whose time has passed.