NEW YORK: Should there be divorce reforms in New York? If so, what?

I always like to scope out other divorce blogs and divorce websites for new ideas for this blog. I found this website the other day, http://www.divorcereform.org/mmo.html, which inspired this post. Should there be divorce reforms? I thought that was a good question. Then I found this editorial in Today’s New York Times called, New York’s Antique Divorce Law, and it occurred to me that, at least in New York, reform will mean overhauling the divorce laws to eliminate the requirement that parties prove grounds before filing for divorce. New York is the only state in the Union that has such a requirement. Why? Good question. I am not sure I know the answer to that. But a more interesting question I find myself asking is whether New York’s “fault” laws is really all that bad? In other words, while many are calling for reforms to bring New York into congruence with all the other 49 states, I find myself thinking that maybe the other states need to reform to be more like New York than for New York to reform to be more like them. Yes, I am playing devil’s advocate to an extent. But to another extent, I am actually serious.

And I should point out that states like Oklahoma, Arizona and California are tinkering with their own laws to make divorce harder, not easier. Yesterday I did a post about how Oklahoma currently has a proposed bill in the works that would make obtaining a no fault divorce considerably more mired in red tape. The idea is to first of all, require pre-marriage counseling before issuing marriage licenses, and also to require pre-divorce counseling before issuing divorces. Additionally, Oklahoma is exploring this idea of the “covenant” marriage which would call for parties to covenant or enter into an agreement before marriage that they will only seek divorce after exhausting all options for saving the marriage, and only if they can demonstrate such things as adultery, cruelty and a few other variables. What’s that? That is a movement towards where New York is right now. That is called making divorce more difficult to obtain. That is forcing parties to prove grounds.

The author of the New York Times editorial cites the fact that New York prohibits gay marriages and requires parties to prove grounds as proof that the state’s laws are antidiluvian and outdated. But I don’t know. Certainly, if the banning of same sex marriages is the test, then with very few exceptions (Massachusetts, New Hampshire, Maine, Connecticut, Iowa, Vermont?) most states ban same sex marriages. So then, all states’ divorce laws are “antiques” by his definition? And the author fails to mention that even though all other states have a no fault provision in their divorce laws, each and every one of them offers parties other fault based grounds to obtain a divorce. In other words, a divorcing person in every state can elect to file for divorce on any basis allowed in that state, including the usual irreconcilable differences, adultery, cruelty, etc. So there are many divorces that occur outside New York that are just as “pricey” as divorces in New York because one or both of the parties allege a fault based ground for ending the marriage.

But one of the points the author makes that I totally disagree with, is that New York’s fault divorce laws are somehow incrementally more expensive than no fault jurisdictions. That may be a slight oversimplification of the facts. It is a fact that divorce, in all states, is a pricey proposition. Not so much for the parties themselves, but for tax payers. When you aggregate all the broken families in this country that have a single mother (usually) as head of household with her 2.5 kids that she can barely provide for; and add that to the number of “dead beat” parents who have not been paying child support for one reason or another as ordered in their divorce judgments; you end up with a billion dollar burden on tax payers who end up funding the social services such as food stamps, health insurance and other social services for a huge cross section of society – the casualties of divorce.

The New York Times editorialist got it completely wrong. Making divorce any easier will not alleviate this problem. It will only exacerbate it. The idea is not to make divorce easier by saying you can get out of this marriage at any time for any reason. Other states who enacted this policy are beginning to see the error of their ways. That is why states like Oklahoma are trying to make it more difficult, not easier, to obtain a divorce in their neck of the woods. If anything, they are trying to make it harder to get married, not harder to get divorced. That, I think, is the key. MAKE IT HARDER TO GET MARRIED. Why is that rocket science to everyone. Think about it logically. See the wisdom in that. MAKE IT HARDER TO GET MARRIED. Force people to think about marriage in a more serious way. Force them to weigh their options carefully with pre-marriage counseling as a prerequisite to obtain a marriage license. Then, tighten the divorce laws too. In that way, they also have to think about it carefully before filing divorce. Tax them. Heavily. Tax anyone who wants a divorce and cannot demonstrate a damn good reason for this want. This will deter many filings.

I have been all over the map on this issue on this divorce blog. I have even advocated a total ban on marriage! In one of my less than lucid moments. But I do believe in marriage. It’s just that, for the most part, I think folks have made such a mess of the institution, that I feel like the only sensible solution is to ban marriage for everyone and allow folks only the domestic partnership agreements. And with that model, polygamy is fine too. If a hundred people want to be domestically partnered with each other, along with their donkeys, who cares?

But when I think about it some more, I realize that family is so very important to society. It is good for children to be raised in a home with a mother and father. It is cost effective for society because these children are less apt to become drop outs according to statistics. They are less likely to become juvenile delinquents. They are less likely to have emotional problems and then start a recurring cycle when they become adults themselves.

The state has an interest in preserving marriage, making it more, not less difficult to terminate marriages and bust up families. But some folks should never have been married in the first place. What the state needs to do, therefore, as far as reforms, is to make the getting married in the first place, more difficult. And in the second place, eliminate such a thing as “no fault” divorce. And finally, institute a huge tax for the privilege of busting up a marriage after making the decision (after pre-marriage counseling, etc) to marry, then coming back 5 years or less, hence, with a desire to destroy the family unit without a damn good reason.

This is not rocket science, folks.

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