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.
Copyright
2006 Maggie Gallagher
