New York joined the other 49 states this week when the "no-fault" divorce law went into effect. Illinois has allowed no-fault divorce provision since the early 1980s.
In a "fault" or "grounds" divorce, one spouse must typically accuse the other of adultery. In New York, adultery had been the sole grounds for divorce from 1787 until 1966. There are other grounds -- abandonment, cruel and inhuman treatment, impotence, imprisonment, bigamy, among many others. Illinois law allows a divorce if one spouse "has been guilty of gross and confirmed habits caused by the excessive use of addictive drugs for the space of 2 years."
The no-fault provision allows a spouse to claim the infamous "irreconcilable differences," that the marriage has been irrevocably broken. In New York, the marriage must have been broken for at least six months, and the divorce can only be granted if child custody and support issues, including visitation, and financial arrangements have been resolved. In contrast, Illinois requires a period fo physical separation for six months (if proven by affidavit) or two years before a no-fault divorce will be granted.
The no-fault law was one of three divorce-related laws that went into effect in New York this week. Both are related to the couple's finances. The first standardizes criteria for temporary and permanent spousal maintenance; the second requires that the "monied" spouse pay the lawyer fees of the "non-monied" spouse.
One upstate New York attorney said the law change triggered an Oklahoma land rush of business for him. Previously, his clients who either didn't have proper grounds or wanted to avoid the finger-pointing involved with the accusations had moved to Vermont for a year to qualify for a no-fault divorce there.
Legal experts don't expect many challenges to the law. One situation could test the no-fault provision, though: the filing of a cross-claim that alleges a grounds-based cause for the divorce.
Resource: Law.com "Eager Clients Embrace N.Y.'s New No-fault Divorce Law" 10/13/10