By Arnold Cribari, a Westchester Collaborative Attorney,www.westchesterdivorcelawyer.com
In her best selling book, “Eat Pray Love,” Elizabeth Gilbert described her experience with her own New York divorce:
“I started having to put legal pressure on my husband, doing dreadful things out of my worst divorce nightmares, like serving papers and writing damning legal accusations (required by New York State law) of his alleged mental cruelty – documents that left no room for subtlety, no way in which to say to the judge: “Hey, listen, it was a really complicated relationship, and I made huge mistakes, too, and I’m really sorry about that, but all I want is to be allowed to leave. (Here, I pause to offer a prayer for my gentle reader: May you never, ever, have to get a divorce in New York.)”
Elizabeth Gilbert is alluding to the problems caused by certain archaic divorce laws in New York. New York is the only state in the U.S.A. where a spouse cannot obtain a no-fault divorce without an agreement. Unlike every other state, New York does not have irreconcilable differences, incompatibility, or similar no-fault grounds for divorce. The only grounds for obtaining a no-fault divorce in New York is known as a conversion divorce: living separate and apart pursuant to a valid separation agreement for at least one year. Divorces in New York on fault grounds (cruel and inhuman treatment, adultery, abandonment and constructive abandonment) can greatly increase the conflicts, disputes and costs, both financially and emotionally.
The New York State legislature has failed, time and again, over many years to reform our state’s divorce laws.
Elizabeth Gilbert in “Eat, Pray Love” further expressed her desperation in her petition to God to put an end to her New York divorce:
Dear God,
Please intervene and help end this divorce. My husband and I have failed at our marriage and now we are failing at our divorce. This poisonous process is bringing suffering to us and to everyone who cares about us.
It is my humble request, then, that you help us end this conflict, so that two more people can have the chance to become free and healthy, and so there will be just a little less animosity and bitterness in a world that is already far too troubled by suffering.
I thank you for your kind attention.
Respectfully,
Elizabeth M. Gilbert
New Yorkers and their counsel have important decisions to make when addressing divorce grounds and marital fault.
If everyone consents to the divorce, which usually occurs once custody, visitation and all financial issues are settled, then it is common practice for a quick uncontested divorce to be engineered: one party testifies (at an inquest or in an affidavit) to fault grounds, typically constructive abandonment (refusing to have sex with the petitioning spouse for over one year), and the other spouse consents. What if this testimony is not true? For our laws to encourage giving false testimony, even when everyone consents, makes no sense.
Difficulties for New Yorkers are compounded when one spouse withholds giving consent to the divorce for strategic advantage, which probably happened in Elizabeth Gilbert’s divorce. When divorce grounds are contested, both parties risk monumental legal fees, the decimation of their marital estate, exacerbating their conflicts and disputes, increasing their children’s suffering, and making the other parent of their children their worst enemy.
Such risks are taken for what benefit? If the spouse who contests divorce grounds wins at trial, such victory is short-lived and a huge waste of money. The party seeking the divorce can simply move to a neighboring State, establish jurisdiction there, and obtain a divorce there based on no fault grounds, such as irretrievable breakdown of the marriage.
It is also not in the interests of the State of New York for there to be such trials and relocations. Divorcing couples, by and large, are not criminals or undesirables. Very often, they are highly productive and talented people, who earn substantial income and pay substantial taxes. Most judges hate divorce grounds trials, and they all have better things to do with their valuable time on the bench.
What can a New Yorker considering a divorce do to avoid such a divorce nightmare?
If possible, stay out of court! Don’t be impulsive about a divorce. Make every reasonable effort to save the marriage by going with your spouse to the best marriage counselor you can find. If marriage counseling is not mutually desired or possible, then consider divorce mediation or collaborative divorce. There is a growing number of devoted divorce peacemakers in New York consisting of mediators, collaborative lawyers, mental health professionals (divorce coaches and child specialists) and financial experts, who practice these forms of alternative dispute resolution. In a collaborative divorce, you will get all the help you need to make a divorce settlement that works for you, your spouse and your children, now and for the long term. And the financial and emotional costs of a collaborative divorce are usually significantly less than such costs for a litigated divorce in the New York courts.
What if saving the marriage is impossible and your spouse won’t mediate or collaborate to resolve the divorce in New York? Although this situation is fraught with risks, it may not be hopeless. There are honest, ethical and capable divorce lawyers and judges who will do their best to help you survive the New York divorce courts.
Inspired by Elizabeth’s Gilbert’s “Eat Pray Love,” I will end with a prayer and petition to God:
Dear God,
I know that marriage is important to you, and divorce is not your favorite thing. But I also believe that you want people to live whole and meaningful lives. So, when a marriage is broken beyond repair, I can’t believe that you want people forced to stay in a conflict-ridden or loveless marriage. And I know that you want children to grow up seeing respectful relationships between their parents, whether or not their parents are married, separated, or divorced.
It is my humble request, then, that you inspire divorcing couples to make every effort to avoid the adversarial court process by utilizing collaborative divorce or mediation so that “there will be just a little less animosity and bitterness in a world that is already far too troubled by suffering.”
I thank you for your kind attention.
Respectfully,
Arnold D. Cribari, Esq.
P.S. It is my not so humble request to ask for your radical intervention in the New York State legislature so that the divorce laws in New York no longer exacerbate conflict and prolong the pain of the divorce process.
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