For most New Yorkers, contact with the court system is limited to combat with a landlord or combat with a spouse – i.e. divorce. But to members of the bar and the bench, divorce has always lacked the cachet of other branches of the law such as contracts or real estate. Perhaps this is because it involves human lives and relationships, with emphasis on the needs of children and "non-monied spouses,” usually women.

But now a Matrimonial Commission appointed by Chief Judge Judith S. Kaye, to study the legal problems of divorce New York style, has issued a report (in pdf format) with findings and recommendations. If the recommendations are adopted, the commission predicts a change in the culture and proceedings of the "matrimonial parts" of state Supreme Court, and also the city's Family Courts.

The commission, chaired by Associate Appellate Division Justice Sondra Miller, and comprised primarily of lawyers and judges, recommends a series of changes which are designed, in part, to move divorce to a higher level of judicial priorities.

The bar, the bench and the public have welcomed most of the recommendations, which include:

• more emphasis on mediation
• streamlined court procedures
• the hiring of social workers
• parent education
• sensitivity training
• and changes in terminology -- for example, “visitation” would become "parenting time."

There is one recommendation, though, that is highly controversial. The commission says it is time for the New York state legislature to enact "no fault divorce."

38,000 Divorces A Year In NYC

In New York City, 26,152 uncontested actions for divorce were filed, and 11,505 contested divorces in 2004, the year for which most recent statistics are available.

These figures can be misleading, however, since the so-called uncontested divorces have often been fought out between lawyers and litigants for years beforehand.

Still, many of the uncontested actions are brought by those with little or no property and therefore no property to fight about. In these cases, which often involve poor and sometimes middle class couples, most issues (such as support, custody and visitation) are heard in Family Court, where it is common for litigants to appear pro se – without lawyers to represent them.

But the actual divorce is different. It can only be heard and granted in Supreme Court -- and some grounds have to be alleged.

Wrong Doing Required For A New York Divorce

New York has never recognized "no-fault divorce," or divorce based on "incompatibility," and remains the only state that requires grounds for divorce. That is, some type of wrong doing must be proven. The plaintiff must allege and prove, for example, "She refused to have sexual relations," or "He went out for the newspaper and never returned," or "He slapped me in front of the children." Until 1967, the only grounds for divorce was adultery. Now, other grounds include cruel and inhuman treatment, abandonment (for one year), imprisonment (for three years).

Some judges try to avoid what they consider a charade, or even perjury, by proving a case which is established by prearrangement and without dispute or contest. One spouse will testify that she was "constructively abandoned" by the other's refusal to engage in sexual relations for a period of one year. To protect the dependent spouse and children, some judges refuse to enter the judgment of divorce until the matters of equitable distribution of property, child support, maintenance for the non-monied spouse (almost always the wife) can be adjudicated or agreed upon.

Advocates for women have long argued that no-fault divorce is harmful to women, that women will be hurt if their husbands can get divorced without the economic and support issues being resolved first. The fear is that a husband can simply go to court, and essentially say "I divorce thee," and go on his way without any court orders for property division, support, or child custody.

Other Recommendations

As confirmed by the report, there are differences in the proceedings involving affluent litigants whose cases are in the state Supreme Court, or poor and often middle class people who appear in Family Court. The commission recommends that the court provide counsel in certain limited situations, urges the legal profession to do more pro bono work, seeks greater funding of such groups as Legal Services and Legal Aid Society (Civil Division), but does not say there is or should be a right to counsel in a divorce.

At the same time, the members endorse an effort to eliminate or reduce the activity of "divorce mills," which are often non-lawyers, even travel agents, filling out stacks of legal forms.

In a little noted recommendation, commission members seek a new statute which would eliminate any right for a non-monied spouse to share in the potential of her partner's income as a result of his special training or enhanced ability to earn money. But she would not lose her interest in, for example, his medical license if she helped put him through medical school.

There is some irony to the timing of this new attention to what some say is a previously neglected field of the law. The number of divorces are declining, as are the number of marriages.