primary caretaker of the children is often not in the outside work world or is underemployed so as to permit that parent to care for the children, and thus lacks the resources to move to a “No Fault” state. In addition, since these spouses care for the children, a move to another state is not an easy task socially (i.e., removing a child from their home and school), or even legally (the courts can enjoin a parent from removing a child from the state). Thus, this spouse is given the untenable choice of leaving their children or going out to an uncertain economic future in return for obtaining a divorce in another state.1
Another problem with the current law is that the courts of New York are spending significant amounts of time addressing and litigating the issue of whether a marriage should be allowed to end. This costs the taxpayers money and the litigant’s money as well. A survey of matrimonial lawyers in New York State indicates that while the majority of time in litigation is not spent addressing the issue of fault, it is not an insignificant amount of time.2 Furthermore, while virtually all cases are resolved by a settlement of the ancillary issues, often the issue of who is to be granted the divorce presents an impediment to final resolution. It is an anomaly that parties are asked to reach a settlement and compromise their positions and in essence continue to trust each other but then the laws of New York State require that one of them accept the fact that they were the reason that the marriage should be dissolved. The courts and attorneys should not be placed in the position of convincing the parties to accept the fact that one of them is the "bad person" and that the other must testify as to the “bad actions” of the other. This charade only further erodes the public’s confidence and respect for the legal system and is demeaning to the courts, the attorneys and the parties. Parties should be permitted to end a marriage with dignity and without being forced to call each other names. In fact, an argument can be made that by permitting parties to end their marriages in a non-confrontational manner society is actually supporting marriages and healthy relationships, in that people can end marital relationships
1 The Court of Appeals decision in O’Connell v. Corcoran, 1 N.Y.3d 179, 770 N.Y.S. 673 (2003) has raised another concern for those who have left the jurisdiction solely for the purpose of obtaining a No Fault divorce. The Court of Appeals has held that if such an action is taken, the courts of New York must review what issues could have been raised in the foreign court proceeding and if issues (such as equitable distribution) could have been raised and were not, then res judicata will prevent the New York courts from acting on the issue. In O’Connell v. Corcoran, the former wife lost out on equitable distribution because she sought what she and her husband thought was a simple No Fault divorce in Vermont.
2 New York State Bar Association Family Law Section Attorney's Questionnaire, Reform of the Statutory Grounds for Divorce in NY Preliminary Report. Three thousand surveys were mailed with a response rate of 24%. Respondents were equally divided between Upstate, NYC and the suburban counties of Long Island and Westchester.