Yesterday, New York joined the rest of the country when the governor signed into law a no fault divorce law. By unilateral proclamation of one party that for six months the "marriage is irretrievably broken," divorce will be final if property and other ancillary matters have been dealt with. The wait and the need to address these issues, including child arraignments, underlines the special nature of "marriage." Some mere contractual arraignment need not have such a waiting period. But, the Supreme Court, Maynard v. Hill, has long held marriage is not merely a "contract" like any other:
Marriage is something more than a mere contract, though founded upon the agreement of the parties. When once formed, a relation is created between the parties which they cannot change, and the rights and obligations of which depend not upon their agreement, but upon the law, statutory or common. It is an institution of society, regulated and controlled by public authority. Legislation, therefore, affecting this institution and annulling the relation between the parties is not within the prohibition of the Constitution of the United States against the impairment of contracts by state legislation.
No fault divorce become common in the latter part of the 20th Century and altered significantly the institution of marriage, easing its creation and dissolution. The New York law also recognizes that another institution that has been more recognized in recent years [it did exist in the past, as noted by the defense witness cited by Judge Walker, in some societies], same sex marriage exists:
It is the intent of this legislation to grant full recognition and respect to valid marriages of same-sex couples to obtain relief under New York State laws and in New York's courts. While the Domestic Relations Law uses the terms "husband and wife" in some places and "plaintiff and defendant" in others, in using the terms "husband and wife", it is not the intent of this legislation to preclude access to relief under the Domestic Relations Law by same-sex couples with valid marriages performed outside the state.
If California, however, only protects a "domestic partnership," this rule would not apply. The failure of full faith and credit is but one matter that makes that regime unequal. Of course, New York has its own problems -- why recognize out of state marriages, if the marriages are not in all intents and purposes as valuable and equal as those that are not protected when New York itself provides the marriage license? Sometimes, comity justifies that, respecting marriages in nearby Connecticut for instance, but still ... why not do it all the way?
Focusing just on this law, the old way required a one year separation and consent of each party for "no fault" to work. But, many are not able to live independently like that or do not, and sometimes one party will not consent. This results in some sham marriages, or at least, marriages that are not really marriages in most respects, but legally deemed as such as a sort of legal fiction. Marriage rights usually is a way the government aids in the promotion of happiness, here it was often an artificial way to hinder that process. And, it could often hurt the party with less power, the other able to handle things just fine.
And, I can understand opposition from conservative groups, but NOW? One article said that they are "worried that it could make it easier for wealthy men to hide assets during a divorce proceeding," but how? Putting aside the benefit to women in relationships where the man refuses to divorce and separation might not be possible (e.g., a battered woman without the means to live alone), the new law still requires property and other matters be settled. If the woman thinks assets are being hidden, she can challenge the settlement.
To summarize:
Up to now, the only grounds permitted for divorce in New York have adultery, abandonment, cruel and unusual treatment, imprisonment of one of the spouses and separation for one year. Judges have frequently been forced to reject petitions for divorce.
"By removing the requirement to prove fault, divorcing couples and the courts will no longer have to waste resources litigating on whether a marriage should end, but will be able to better focus on issues such as the welfare of the children, fair division of marital assets and other economic concerns," said Stephen P. Younger of Patterson Belknap Webb & Tyler and president of the state bar. "The court system will ultimately realize substantial cost savings."
Also, related laws were also included:
Mr. Paterson also signed another bill favored by no-fault divorce advocates, A7569/4532, which requires payment of counsel and experts' fees to the "non-monied" party in a divorce action. Bill sponsors said the measure would level the playing field and allow the spouses—generally the wife—who has made little or no money during a marriage to protect their interests during a divorce.
Finally, Mr. Paterson also indicated that he had signed A10984/S8390, which will establish a schedule for temporary maintenance payments to non-monied spouses as their divorce proceedings move toward finality. The measure directs the state Law Revision Commission to study the effects of divorce and the new temporary maintenance schedule and report to the Legislature and governor on possible changes.
I will read up more on this, probably, but at first blush, this looks to be a good thing. New York lagged behind other jurisdictions and this led to some troubling results.