By Stephen Witt
Could irreconcilable differences be grounds for divorce?Not in New York, the only state in the country where mutual consent divorce decrees are illegal.That may change soon. A matrimonial commission appointed by the state’s chief judge, Judith S. Kaye, recommended that state lawmakers change the statutes to reflect the other 49 states.“Divorce takes much too long and costs much too much – too much money, too much agony, too hard on the children,” said Kaye last week in her annual State of the Judiciary Address.Kaye said lobbying the state legislature to change the law would be “front and center” of her agenda in coming months.Kaye also recommended wording changes in divorce cases such as taking out the word “visitation” and substituting it with a term like “parenting time.”The commission also recommended that the state provide funds for representation of those who cannot afford divorce.In many cases, low-income spouses either cannot afford divorce or wind up representing themselves, according to the report.According to Steven Cohn, past president of the Brooklyn Bar Association and a matrimonial attorney, no-fault divorces would save court time and client fees to prove divorce grounds.Cohn, who is also a founding member of the Brooklyn Bar Volunteers Lawyer Project (BBVLP), which provides pro bono (free legal service), also endorsed the idea that the state come up with some money to help spouses on low-income attain a divorce.“A great percentage of people who use the volunteer lawyer services are for divorces,” said Cohn.“This type of organization needs the funding that the report talked about. We’ve been doing this for over 10 years for free and received awards for moving in this area, and hope it will be funded and replicated throughout the state,” he added.Cohn noted New York is the only state in the country that requires one of the parties in a divorce proceeding to bring up grounds such as adultery, cruel and inhuman treatment, or living separate and apart.Often when you go in front of a judge in divorce proceedings, the bench asks the couple to enter into pre-conference orders, Cohn said.At these conferences, Cohn said, the parties attempt to hash out such issues as child custody and equitable distribution of assets, and often the couples say that the grounds for divorce is not an issue.However, when the matter goes back before the bench, the judge is required by law to establish grounds for the divorce, he added.“It’s a very interesting issue in light of everything going on,” said Cohn. “The legislature can change or eliminate grounds for divorce, but because of strong religious influences in the state they [the legislature] don’t want to act in that fashion and make it easy for divorce.”The attorney additionally noted that until 15 or 20 years ago, the only grounds for divorce in the state was adultery.“So New York is a little archaic in the grounds field of divorce,” he said.Cohn said while he understands the religious views that matrimony is sacred, the other side begs an answer as to why people have to spend additional money fighting a “dead marriage.”Current law does allow couples a no-fault divorce if the reach a legal agreement to separate with a consensus on all financial, property and child custody issues, and then stay separated for at least a year.Assemblymember Helene Weinstein, who chairs the Assembly’s Judiciary Committee, said she has yet to review the report, but noted she supported no-fault divorces in the past.Weinstein said in the past the legislature was reluctant to change the divorce laws, but she has seen a different shift in recent years.As such, Weinstein said she is working on a potential draft proposal.Governor George Pataki’s spokesperson did not return calls on the issue at press time.However, one published story said Pataki has yet to review the commission’s proposal.
