The Suffering of Children . . .

I got an email the other day from a teenager, let’s call him “Andrew”. This young man was researching—his word—how to help his parents. According to Andrew, his parents are stuck in an unhappy marriage. He wanted to know if there was a way to file a court action to force them into marriage counseling. The email went on to say that although he realized divorce was probably the best thing, he didn’t think that his upper middle class family could afford divorce because his parents are currently not working.

Of course, there is no court proceeding to force people into marriage counseling even if their teenage son is the person seeking the relief. I suggested to Andrew that he seek assistance from his school or from a local mental health facility specializing in families with a sliding scale for fees.

It felt somehow inadequate not to have a better solution for this resourceful teenager who wrote the following, ” Over the past couple of years I have experienced tremendous suffering from the turmoil between my parents, and I often had to step in the middle of the fights as early as age seven.” As a conflict resolution professional who works with divorcing couples every day, I am used to dealing with people who have come to the end of their marriages. Frequently, it is the case that one person has decided that the marriage is over and the other person is not in that same place. When that happens, there are ways for the couple to address their different approaches to the end of their marriage and they each have a choice as to what to do—enter therapy, try marriage counseling, etc.. Mediation and Collaborative Practice allow couples to proceed at their own pace and take whatever time they need to adapt.

Andrew faces a situation where he realizes his parents’ marriage is not working and he is the one suffering. Although I am sure based on his description that Andrew’s parents are not happy in their marriage, they have not done much about it. He wants to do something about it but there isn’t much he feels he can do. How frustrating and painful for him. It’s frustrating for me too.

No Fault and More--Radical Change Coming to New York Divorce Law?

The New York Senate recently passed legislation radically altering New York’s archaic divorce laws. Three Bills now move on to the Assembly. Much has rightly been made of the proposed change to Domestic Relations Law Section 170 that would allow a marriage to be dissolved by the sworn statement of one party that the marriage had irretrievably broken down for six months or more. A divorce could only be achieved on this ground after all the financial and custody issues had been resolved.

Clearly, this Bill will help move New York out of the dark ages where people in dead marriages were forced either to stay married or to move out of state to achieve divorces when their circumstances did not permit them to prove one of the fault grounds currently in the New York statute. The need for this change in New York’s law is evidenced by its support by New York Bar Associations whose members often earn tens of thousands of dollars in legal fees on fault trials. The need for change is clear when the only people to benefit from fault trial advocate the need for change.

Advocates for domestic violence victims support the passage of this Bill. The requirement to prove fault often exacerbates the incidence of domestic violence. A 2006 University of Pennsylvania study found that evidence of domestic violence dropped by one-third following enactment of no-fault divorce.

Two other Bills that would radically alter New York’s divorce law also passed the Senate. These two Bills have been massively under reported in light of the momentous possibility of no-fault divorce but they deserve serious attention as well.

One Bill would ensure access to legal counsel for the non-monied spouse when the other spouse controls the assets available for the payment of legal fees. When an action for divorce is begun, it is often the case that most of the marital assets available for the payment of legal fees are controlled by one of the spouses. Currently, in order to ensure that each party will have equal access to adequate legal representation judges are authorized to require the more-monied spouse to pay the legal fees of the less-monied spouse. However, these interim counsel fees are inconsistently awarded, and often not until a trial has begun—too late in the process to really be helpful. This legislation would require the awarding of counsel fees toward the beginning of the divorce process, allowing more equitable representation for both parties.

The other Bill, which passed the Senate 60-0, addresses the award of spousal maintenance (formerly called alimony) – the awards for which is disturbingly unpredictable and inconsistent. As a practitioner it is impossible to tell a client what to expect or even what the common outcome for a maintenance award is. The Bill establishes post-marital income guidelines in an attempt to create consistency and predictability to post-marital income calculations across jurisdictions. This is, in effect, a formula for maintenance similar to the formula provided for child support and fraught with similar limitations. New York’s Child Support Guidelines are poorly drafted and rigidly applied. They fail to take into consideration numerous real life situations that make their application unfair or unrealistic and can serve to make the living arrangements of children a bargaining chip to be used in the divorce negotiation.

New York does need more consistency in maintenance. The current system is ridiculous in its inefficiency and unpredictability. The introduction of a formula, however, is not the best answer and would swing the pendulum from the current extreme of unpredictability to the other extreme of rigidity. The laws could be amended to offer judges more guidance and direction while allowing them flexibility to consider the couple’s circumstances and mold an appropriate solution. This would be a better result.