Friday, June 25, 2010

Truth in Divorce

More on New York's shift to no-fault divorce.  This time the focus is on increased truthfulness in divorce court.

There are certain to be consequences if New York State introduces no-fault divorce, as now seems likely. The divorce rate might climb. Matrimonial battles will focus on bitter issues like support and child custody. The poor will be able to get divorced as easily as the rich. But there is something else. Those who are splitting up can just tell the truth.

For decades, New York State’s divorce system has been built on a foundation of winks and falsehoods. If you wanted to split quickly, you and your spouse had to give one of the limited number of allowable reasons — including adultery, cruelty, imprisonment or abandonment — so there was a tendency to pick one out of a hat.

Pregnant women have insisted they have not had sex in a year, one of the existing grounds; spouses claimed psychological cruelty for getting called fat; and people whose affairs have made Page Six have denied adultery. One legendary ploy involved listing the filing lawyer’s secretary as the partner in adultery (which may even have been true in a few cases).

“What the fault divorce system has done is that it has institutionalized perjury,” said Malcolm S. Taub, a veteran Manhattan matrimonial lawyer. “This play-acting goes on and everybody looks the other way and follows the script.”

Nancy Chemtob, a lawyer who has been edging into the celebrity divorce ranks, said the requirement that someone find fault has long forced lawyers to question clients closely to try to find an acceptable reason to explain the split, even when the real reason is pretty simple: The client does not like his or her spouse.

Because dislike, no matter how intense, does not fit one of the legal slots, Ms. Chemtob keeps asking until her client says the magic words, like “he bought me a gym membership,” Ms. Chemtob said.

“I have to sit there like a shrink or I’m not even sure what, but definitely not a lawyer, pulling all this verbiage on grounds out of them,” she said. Lately, it seems, purchasing a premium workout package is code for, “You are a slob.”

That would not necessarily be cruel and inhuman treatment in the outside world, but in the matrimonial courts it can be more than adequate, said Robert S. Cohen, a leading New York divorce lawyer.

“One spouse gets on the stand and says, ‘He complains about the fact that I don’t make the bed every day,’ or one of them says ‘She complains that I don’t do the dishes,’ ” Mr. Cohen said.

In cases where both sides want the marriage to end, judges often declare such infractions fault enough, Mr. Cohen said. “There’s a clear feeling among the judges that fault should have been long gone from our system,” he said.

For judges, New York’s requirement of fault when the rest of the country has abandoned that requirement creates a series of problems. One of them is the need to listen to private information some of them feel is none of their business.

Acting State Supreme Court Justice Jeffrey S. Sunshine, the supervising matrimonial judge in Brooklyn, said it seemed somewhat 19th century to have people testifying about “constructive abandonment,” the legal term for rebuffing intimacy for a year or more.

“Should we really,” Justice Sunshine asked, “in the 21st century be having people get on the stand and testify that ‘my spouse refused to have sex with me’?”

Read the full story here.

AC

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