New York Divorce Report - New York's Divorce and Family Law Blog

In a rare decision, a Nassau County judge challenged the state legislature to pass a bill adopting no-fault divorce.   Justice Robert Ross in Molinari v. Molinari stayed rendering judgment in the parties’ fault trial until the New York State legislature considers the issue of no fault divorce.

The decision highlights the fact that New York is the only state without a no-fault divorce.  The Judge then details the cost,  expense and prejudice endured by Mr. and Mrs Molinari, a typical estranged couple,  resulting from the absence of a no-fault divorce.   

This case vividly illustrates the direct impact that New York's fault-based statute has on the manner and speed in which matrimonial matters proceed. Here, while litigating the issue of grounds, these parties were relegated to motion practice, amendment of pleadings, contemplation of withdrawal of the action and seeking a divorce in another jurisdiction, filing jury demand, conferences, and ultimately, trial of the matter. The proceedings relating to fault endured since January 2005.

Jeffrey Molinari, sought a divorce from his wife, Paula, based on one of the most commonly used grounds for divorce -- "constructive abandonment," or the refusal of one spouse to have sex with the other for at least a year. In the 49 other states, Ross urged, "Mr. Molinari would be entitled to be granted a judgment of divorce, on these limited facts alone."

Justice Ross aptly pointed out that the significant cost and delay, resulting from grounds  trials, preclude access tor courts and make the process of divorce  wholly more acrimonious by fostering and encouraging the embellishment of a spouse's wrongdoing as to grounds.

As Newsday reported, Justice Ross reserved the right to decide later on the case if the legislature failed to act on the bill. He said that other issues in their case -- including disputes over finances -- will move ahead. He acknowledged that his stay on the fault issue was aimed at sending a message to the legislature.

In a fascinating article published in the New York Times, Tyler Cowen, a professor of economics at George Mason University and co-author of a blog, the Marginal Revolution, explores the benefits of what he terms, unilateral divorce.   His conclusion, unilateral or no-fault divorce leads to happier but perhaps, less committed marriages.

In the United States, the availability of divorce has increased with unilateral divorce, which allows either member of the couple to dissolve the union. The change has been associated with lower rates of female suicide and domestic violence, and fewer wives murdered by their husbands. Unilateral divorce shifts the bargaining power to the person who is getting less out of the marriage and thus is most likely to leave. The partner getting more from the marriage has to work harder to keep the other person around, which can be good for the marriage and good for the couple. In other words, unilateral divorce benefits victims and potential victims.

When unilateral divorce was adopted, divorce rates rose sharply in the two years that followed, reflecting a pent-up demand for divorce. But after 10 years had passed, the divorce rate went back to normal or in some cases, compared with states without unilateral divorce, it had fallen further.

In fact, the divorce rate for married couples peaked in the United States in 1979, when it was 22.8 per thousand married couples per year. Since then it has continued to decline, reaching 16.7 divorces per thousand married couples in 2005.

If matrimony as an institution has declined, it is because fewer people are marrying in the first place. Marriage is at its lowest rate in recorded American history, and marriages are shorter than before. If fewer weddings mean fewer divorces, individuals are probably making better matches. Perhaps there should have been fewer marriages in the first place.

One group more likely to be married today than ever before is Americans over age 65. Men are closing the life expectancy gap with women, and that means fewer widows, a comforting thought. The elderly are the most likely to require marriage for assistance with medical problems, not to mention sex and companionship.

Consistent with economic reasoning, marriage is growing among groups who benefit from marriage the most. Furthermore, the women least likely to remarry are highly educated with a high income, namely those who are best able to handle single life. Women with the least resources are the most likely to remarry.

Unilateral divorce does make for less committed marriages. In states that allow unilateral divorce, a spouse is 10 percent less likely to be putting the partner through school. The obvious fear is that once the costly education is over, the beneficiary will leave the marriage. In states with unilateral divorce, adjusting for the relevant demographics, a couple is 6 percent less likely to have a child. Again, couples seem to be making decisions with the prospect of divorce in the back (or the front) of their minds. That may be one reason for the surge of female interest in higher education and advanced degrees.

Often, earlier approaches to marriage were based on the idea of a division of labor; the man would earn the income and the woman would take care of the household. But as female earning power increases, this arrangement makes less sense. Men and women are more likely to pair off on the basis of similar education, similar interests and similar tastes in consumption. In other words, modern marriage is more fun.

And what about the children? Don’t they suffer in happiness and future prospects from divorce?  Maybe so, but Mr.  Wolfers and Ms. Stevenson do not think the question has received a final answer. To be sure, it is better for a child to have happily married parents, but when the family is dysfunctional anyway, we don’t know whether divorce harms the children. In any case, the number of children in a given divorce is, on average, declining. In 1968, the average divorce involved 1.34 children. By the 1990s, this had fallen to an average of less than one child per divorce. Since many people put off having children, and the average marriage is shorter, many divorces arrive before the children do.

In a case where a husband abandoned his wife and children and failed for nine years to pay any child support, a Court ruled it was appropriate to set off the husband’s unpaid child support obligation against his interest in marital property.   Since the husband failed to pay child support for nine years, his interest in the martial home was set off against the amount of unpaid support. As a result, the Wife was entitled to full possession and title to the marital home. 

 In the case Pritchett v. Pritchett ( N.Y.L.J. 4/9/07(subscription required), Justice Darrell L. Garvin ruled that the husband’s abandonment of his family and failure to contribute any child support created a “substantially unequal burden on the [Wife] to the benefit of the [husband]. This benefit of the non-contributing spouse constituted an unjust enrichment which should be rectified.”

Applying the child support guidelines to the Husband’s income at the time he abandoned the family, the Court calculated the amount of unpaid child support arrears and the husband’s share of the child care, educational and medical expenses even though the Wife had not previously obtained an order requiring the payment of support.   

Since the child support arrears exceeded the value of the Husband’s equitable interest in the marital home, the Court transferred title to martial home to the Wife. 

Health News Digest  reports that there may be  health and financial costs to  divorce that  do not reveal themselves until long after the divorce is complete.

It is widely known that because of the economies of scale, many  families going through a divorce and those with children, in particular, will face some diminution in their standard of living  after the divorce.  The reason, the income that used to support a single home when the marriage was intact, must now support two households.  The same income must now pay two rents or mortgages, stock two refrigerators, pay two cable bills and the list goes on.   There may not be enough resources to pay for all the things that intact family took for granted.
 
However, the article is interesting because it goes beyond the obvious costs and shows some of the hidden costs of divorce.

To this must be added duplicate items for the children: when the bicycle goes to one house, a second one will have to be purchased for the other house because neither parent will want to be seen as less generous and caring than the other, and this is true for all items, essential and non-essential alike; clothing, beds, towels, doll houses, video games, school supplies, and so on, plus the time and money required to replace, repair and upgrade these items. Certain expenses, such as daycare costs and doctor visits, may be divided more or less equally (assuming both parents are willing and able to pay, which is oftentimes not the case), but for daily living expenses, a safe rule of thumb might be to count the number of kids you have and multiply by two—then add the costs of a second home.

And if, for example, the parents live an hour apart and transfer their children back and forth thrice weekly, that adds up to another thirty hours of driving time per month, plus gas, and related expenses, not counting delays, schedule changes, forgotten items, extra pick-ups and drop-offs, and extracurricular activities that were previously managed through some sort of division of labor, but must now be done separately. In varying degrees, this holds true for most other household activities—efficiency is lost when spouses must function without the support of each other—and as the old saying goes, time is money.

This change in our financial picture, however, does not stop at the home front, but reaches into the workplace as well: the U.S. government reports that half of all single mothers receive public assistance, while divorced men earn between 10% and 40% less than their married counterparts having similar educations and backgrounds. It should come as no surprise then that at the age of retirement, divorced couples have a significantly lower net worth than those who remained married. After divorce, the yellow brick road quickly loses its luster, and life is rarely easier.

Of course, here we’re just talking about money matters, and as we all know, divorce involves a lot more than financial losses. Divorcés also experience significantly higher numbers of early death of almost all the major diseases, as well as higher rates of in and out-patient psychiatric care, suicide, physical abuse, accidental injury, and drug and alcohol use. But those are other issues. Here we’re focusing only on dollars and cents. One hurdle at a time.

In summary, although divorce leaves us in a highly emotional state, we should be careful not to let those emotions rule our thinking, particularly those that blind and bind us to the grim consequences of such decisions. Before making that call to an attorney, or presenting your spouse with your decision to leave, make sure that you’ve taken the time to ask yourself if divorce is really worth the financial price you will pay. If it is, then fine, you can move on to the other matters mentioned above. But do you homework first—and make sure that your pencil is sharp.