Topic: Splitsville, New York: a forum on New York's divorce system

The Opinion section invites readers to share their thoughts on New York's divorce system.

Have you (or your parents) been through divorce in New York? We invite you to weigh in through our reader forum. Share your own personal experiences with divorce court, and discuss ideas for reforms with some experts in the field.

• Did the legal system hurt or help the process?
• Do you think a "no-fault" system would lead to a fairer settlement?
• What was the impact on your family dynamics and parent-child relationships?
• How can divorcing parents, inside and outside the legal system, ensure that their children's privacy and sensitivity is respected?

Read more about this issue here.

Read more about our panelists: Steven Carlson, Steven Demby, Hal Mayerson and Andrew Schepard.

I am delighted to participate in this forum. I practiced divorce law but have primarily been a law professor, and advocate for children for a number of years. One of the things I am proudest of in my professional career is helping to found P.E.A.C.E. (Parent Education and Custody Effectiveness), an education program for divorcing and separating parents that has served as a model for similar programs in New York and elsewhere.

I have been fortunate enough to come into contact with lawyers, judges, mediators, psychologists and advocates for children from all over the Country and all over the world. When I tell someone from elsewhere that I am from New York, he or she inevitably shakes his or her head and states” I can’t believe you still are a fault divorce state – we changed years ago, and never want to go back.” New York has the reputation everywhere of being the most adversarial divorce system in the United States.

All of the psychological research that we have on divorce indicates that it is "at risk" event for children. The single best predictor of whether children will suffer longer term emotional, educational, or economic damage from their parent's divorce is the level of conflict and animosity between the child's parents.

The fault system places parents in an adversary mentality and encourages conflict, which is directly conflict to the children's best interests. It is a relic of a time when divorce was limited, religiously based and treated like a crime or a tort. Most other places treat it now as a time of family reorganization, not for fixing blame or shame. They operate on the philosophy that marriages may end, but parents are forever.

Fault divorce is one of many features of New York's highly adversarial divorce system. Here are other key public policy features of most other states divorce system that benefit children that New York either lacks or is underfinanced and underdeveloped:

-Using the neutral, functional language "parenting" instead of "custody" and "visitation" in its statutes and case law;

- Mandating that all divorcing parents attend parent education programs as a routine part of the divorce process

-Mandating mediation of parenting disputes before trial (cases involving domestic violence and child abuse excepted)

-Creating support and educational groups for children to normalize the divorce process for them and tell them "they are not alone"

-Creating a code of ethics for divorce lawyers that encourages them to counsel their clients about the best interests of their children in conflict reduction.

- Creating a single court for divorcing families instead of splitting divorce claims between the supreme and the family court

These are just some ideas that have been enacted in other states to reduce the adversarial combat of divorce concerning children that have "worked" elsewhere. Some progress has been made on some of these in New York, but not enough for me. Its hard for me to understand what holds New York back. Maybe others can explain it.

Andrew Schepard

I am very happy to be participating in Newsday's forum on this important topic.  The research is unanimous in showing that exposing children to parental conflict during divorce is psychologically damaging to them.   A child’s identity is made up of building blocks from each parent.   When children hear bad things about either parent, they feel like a part of themselves is bad and unlovable.   Litigation has its place in certain types of cases.   But too often litigated divorce ratchets up the conflict between the parents rather than helping to contain it.   And after the litigation is over, the memory of the allegations and personal attacks that have been hurled at each other remains.   Left over anger and bitterness between the parents can continue to smolder, preventing parents from communicating and co-parenting constructively, and the children suffer as a result.    Alternatives to litigation such as mediation and Collaborative Practice are not for everybody.  But when they are suitable, they help to contain rather than exacerbate the conflict, making it more likely that parents will find ways to effectively co-parent after the divorce is finalized.

Parents can protectively shield children from divorce conflict by offering their children an explanation of the reasons for the divorce that is tailored to the child’s age and ability to understand and that spares the child too many intimate details which are really the adults’ private business.    Parents can also help by refraining from bad-mouthing the other parent to the child, by not asking the child to relay messages to the other parent, by not grilling the child about the activities of the other parent when they return from visits, and by generally supporting the child’s relationship with the other parent.   Most parents want to protect their children from the nastiness of the divorce.  But in the heat of the intense emotions surrounding a divorce, good intentions can fall by the wayside.     Parents going through divorce report feeling injured, betrayed, sad, angry, vengeful, guilty, and more.   It is a challenge for parents to act protectively toward their children when they themselves are feeling so much emotional distress.    

The fault system in New York reinforces the view that the legal process of divorce is about assigning guilt and blame.   While this satisfies deep emotional needs, especially for the parent who feels the most injured by the other parent’s actions, it does not keep the focus on the important question: how will the post-divorce family be re-structured to be most supportive of the children’s needs?

Dr. Steven Demby

I appreciate the opportunity to participate in this discussion, which raises some extremely important questions with regard to how New York's fault-based divorce system affects families and children of divorce.  I am a parenting consultant and founder of Child Custody Coach™, which supplies exclusive information, online materials and child custody coaching services to parents nationwide.

The fault-based system lengthens the divorce process and creates an acrimonious environment in which spouses are pitted against each other.  Hence, the main reason why the other 49 states have adopted unilateral no-fault divorce laws.  In a fault-based system there is incentive for spouses to blame each other and expose dirty divorce details to gain leverage for custody and finances; financial settlements are based on fault rather than on need, financial contributions or ability to pay.

The protracted divorce process and litigation that results from a fault-based system has a negative impact on children – it increases the amount of parental conflict they are exposed to.  Without question, the conditions and amount of conflict the child is exposed to leading up to the divorce has a far greater impact on a child than the family split-up itself.  The shorter the divorce process, the less conflict the child will be exposed to.  The less conflict the child is exposed to during the divorce, the less emotional harm the child will suffer.  Kids are primarily affected by how their parents divorced – not why they divorced.

So how can divorcing parents help their children? Here are 5 suggestions:

1. Do not discuss the dirty divorce details within earshot of the children.  Keep the dirty laundry to yourself.

2. Do not speak negatively about the other parent.  Children know they are a creation of both parents – hearing negative remarks about either parent is harmful to them.

3. Children can benefit from a good therapist – children can speak freely and confidentially to a therapist without the feelings of having to choose between parents.

4. Parents should take a co-parenting course and get counseling to enhance their parenting skills and learn how to work together post-divorce for the benefit of their children.

5. Avoid litigation if at all possible.  You can keep your parenting relationship   amicable which will benefit the kids – and save a fortune in legal fees!

Does New York’s fault-based system place too much emphasis on why you divorce rather than how you divorce?  Do the other 49 states have it wrong with strict unilateral no-fault divorce?

I welcome your thoughts and opinions.

Steven Carlson, The Custody Coach™

I think there is something wrong when a husband/wife is respnsible for their wife's/husband's debt and there is no legal recourse to get them to stop spending money.

I have been married for 14 years and at the time, my wife was working. After 4 years, she decided she didn't want to work anymore-one month after we moved into a new house we bought together. Ten years later and two refinances such that the mortgage is now more than twice what we paid for the house, I have had enough. No amount of discussion was able to get her to realize her problem and put an end to her spending. When she'd go out and buy a blouse (that she probably didn't need anyway) she'd buy the same blouse in six different colors. She has about twenty feet of closet pole and about fifty feet of clothing-the upsatirs is a mess. At one point, she discovered the shopping channels and the crap was coming in so fast, it just piled up, unopened. In one two year period she spent more than my gross annual salary on stuff that has absolutely no residual value!

I go to work every day in an effort to make a comfortable life for both of us but I am having it siphoned away from under me. I finally had to leave the house back in October of 2007 and file for divorce . I have paid the mortgage, insurance and utilities since, for a house I don't get to live in. Now she is contesting grounds and making it still more difficult for me to have the rewarding life I deserve. A person that has a spouse that brings the couple to the verge of bankruptcy should have grounds for divorce.

As a recent divorcee, going through a three year, nasty, expensive divorce in Nassau County - I am outraged by New York's divorce system.  Not so much for the lack of "no fault" divorce because what most people do not realize is that even though New Yorkers must cite fault with their divorces ... it really doesn't matter who is at fault.   In the end, you really don't get any more or less because your spouse was a cheat adicted to porn.    Why do you think 86% of New Yorkers chose "abandonment" as grounds for divorce... because nobody really cares who is at fault. 

During my divorce proceedings, the Nassau county judge had about forty cases on her docket each day I was in court.  She has about five or so minutes to devote to my case and could really care less about how many times my ex cheated on me.  Unless you have the time, money and energy to go to trial like Christie Brinkley... the judges here do not want to "judge"... they want you to SETTLE it on your own.  And if you can't come to an agreement - well then you just spend more time and money in the court system arguing over who gets the throw pillows because the judges have to time to intervene.  No party is forced to take any settlement they don't want (no matter how fair it is) unless you go to trial -- which could take months and months and thousands and thousands of dollars. 

I am no Christie Brinkley, I am a middle class school teacher from Long Island who paid out her life's savings to a divorce lawyer because we just couldn't agree on a settlement and had absolutely no help from the court system.  I ended up dead broke and my lawyer bought a new boat.  What we really need is mediation, and perhaps more judges who have the time and energy to actually judge. 

Marital debt and credit issues post-divorce is a big issue divorcing couples struggle with in many states.  In New York, any debt accrued during the marriage is considered marital debt subject to distribution between the parties in a divorce.

In an article, Hiding Debts From Your Spouse Can Be Recipe for Divorce, Sheera Gefen-Greenberg, a matrimonial attorney for municipal employees' services in New York, had a client who was largely in the dark about her husband's assets and liabilities.  However, according to Gefen-Greenberg, "Even though he's primarily liable for those debts, the wife, in a divorce, may still have to foot the bill at the end of the day."

While marital debt accrued by one spouse during the marriage may be grounds for divorce, the distribution of the marital debt during divorce and credit issues post-divorce can still be extremely problematic.

As New York matrimonial attorney Gefen-Greenberg put it, "Without a prenuptial or postnuptial agreement, it's hard to protect yourself." "You shouldn't be passive about your finances; know what's going on throughout the marriage."

So how can couples avoid marital debt and potential credit issues post-divorce? Here are 5 ideas:

1. Obtain a fiscal check up prior to marriage

2. Obtain annual credit checks during marriage

3. Monitor bills and credit card spending

4. Prenuptial agreement

5. Postnuptial agreement

For 5 more ideas on how divorcing couples can “divorce their credit histories,” see article Credit Histories Can Stay Married Long After Divorce.

Hiding Debt Link: a href=” http://www.smartmoney.com/debt/advice/index.cfm?story=hidingdebt

Credit Histories Link: http://www.smartmoney.com/divorce/basics/index.cfm?story=credithistories&pgnum=2

I welcome your thoughts and opinions.

Steven Carlson, The Custody Coach™

Dear Beenthere,

    I often hear people voice frustrations similar to yours about their experiences going through the court system.  The expense is one big factor.  For folks on middle class budgets, the expenses of litigation can seem huge.    It feels particularly frustrating when one spouse can block a fair and reasonable settlement offer simply by saying "no," thereby forcing the other spouse to go to trial and spend more money.     The adversarial legal system creates an environment which reinforces "hard ball" negotiating tactics that eat up more and more legal fees.   

   You are correct that often judges do try to promote settlement.   Many judges believe that parties should be given an opportunity to try to reach their own settlement before having a solution imposed on them from above.   Judges do carry many cases and often prefer to avoid the time a trial would require if possible.  This can lead the parties in a divorce to feel that their case is not getting a full hearing before the court unless they go to trial. 

   Divorce itself is a very painful event.   I can well understand that it seems unfair to add on top of this the enormous financial strains that can result from divorce litigation.

 Dr. Demby           

Dear Been There:

Yes, there is definitely a need for more Judges and court personnel and also for more social workers to help families, at no additional cost to them. Additionally, Judges are supposed to level the playing field between spouses of unequal wealth. Unfortunately they do not do this often enough as some believe that if they award counsel fees to the non-monied spouse, all it will do is prolong the liitigation. In my opinion most matrimonial attorneys know what they are doing and try to do a good job. One of the problems in New York is that we do not certify lawyers as experts in their areas of work. So consumers have little information as they go about selecting attorneys in this very complicated area of law. I suggest that before  individuals select an attorney they interview at least thre attorneys, check their bona fides to see if they are, for example members of the Family law Section of the New York State Bar Association or Fellows of the American Academy of Matrimonial Lawyers. You wouldn't go to a Ford mechanic if you have a Mercedes Benz; so why go to  lawyer who does a little bit of this and a little bit of that rather than someone who primarily practices in the matrimonial field.  Hal Mayerson

Dear Been There:

I sympathize. Divorcing parents need more dispute resolution options than the litigation system. The great majority of people do not have the resources to pay for counsel. Statiistics indicate that an increasing number of divorce litigants are self represented either because they do not have the money to pay counsel or because they do not trust lawyers. In some areas that number is 80% of divorce litigants have no counsel.

Something is wrong here. We create a legal system on the assumption that those who use it will have counsel, but they don't. 

An increasing number of options are available to divorcing couples who want to maintain control over their own futures and reduce costs- mediation and collaborative law are the most important. The problem in New York is that public policy has not provided enough support for these options.

When children's futures are at stake, my view is that mediation should be mandatory, not optional, for most couples. Most other states besides New York agree.

Andy Schepard 

The legal system presently is hurting the process. I find the system very dysfunctional and has a gender bias component against husbands/fathers. I filed for divorce against my wife in the summer of 2007 after I found out she was romantically involved with another man and that she stopped paying bills particularly the mortgage for over 10 months. My filing for divorce was also a counter measure to my wife filing in Suffolk County Family Court for child support because I cut her out of the finances. Having control of the money was more important than solving or saving family problems. This Court without a care for the circumstances awards my wife 25% of my earnings. I was outraged to say the least. My lawyer believed I would have a better shot in Supreme Court. The dysfunction does not change here either.

I’m the father and step-father of 6 kids one of which did not live with us. I moved from one house to another to make room for all kids who range in age from 1 to 23 at the time. It all falls apart soon after because my wife feels her needs are not being met and she is not having sex to her liking. Secrets were being kept from me. Things like spending money for services and not paying the whole balance. Barrowing money and credit in the thousands from my step kids to help pay bills and swear them to secrecy not to tell me. Money and credit still owed by her. I had to find out from my stepson who was informed by his sisters that Mom is at another mans home at 3:30 AM. A devastating domestic incident between a mom and her 20 year old son occurred at this mans home and on my front lawn at 4AM. I was home sleeping watching my 2 young sons and I found out about the other man. I met the man he admitted he was with my wife.

I was forced to leave the home after my wife called my job (Law Enforcement) accusing me of threatening her with a crime. She did this on a day off I had that I told her I was working but instead was in Riverhead obtaining my foreclosure papers. The case was unsubstantiated and my duty status unchanged fortunately. Shortly after I leave she moves to a different house with the help of other man with my 2 boys 2 & 6. She cut me out of both my sons birthdays, Thanksgiving and informs me a few days prior to Christmas that she is going Florida. She stole my car from my friends driveway without my permission or authority, title and insurance in my name solely. I could not get SCPD to take a report for lost plates. I know its Unauthorized use of a Motor Vehicle in NYS and A Domestic incident Report should be prepared. Not in Suffolk County. SCPD is horrible on domestic issues and I could not count on them for help. I had to write SCPD Internal Affairs and the SC DA. Only then did my vehicle miraculously appear. The DA’s Office never even acknowledged my letter. A JOKE and extremely dysfunctional.

Supreme Court in Suffolk County benefit’s the Lawyers only. It’s a nice cash cow for them. Five conferences and I have yet to see the Judge. I know who she is but never seen her. The action is in the hallway not the courtroom. Lawyers make more money doing crossword or working on other cases not scheduled while collecting an outrageous fee hourly. What is really going on in chambers during these lawyer conferences? Why as a petitioner am I excluded from these meetings ? How do I know who is Honest? I’ve been told by Lawyers that this is a money system. If you have the money you will probably have the advantage. My wife can cause me all kinds of interference with my boys and the courts and police will not do a thing to help me . You will suspend my License and incarcerate me if I do not pay but what about me the guy that does pay and works risking his life for others. What will the system do for me when she prevents visitation? Its all about MONEY!!! I think a Judge Judy format is needed. Especially in cases like mine were assets were thrown down the toilet for no reason. Couples getting divorced should be mandated to parenting counseling and sign a contract regarding upbringing of children. I am finding out what little values my wife really has. We are at odds on everything. We do not have same value system. I get excluded on all important issues regarding my sons and get told about it after decisions are made. It is usually compounded by my wife spending more money she does not have and then expects me to compensate even if I disagree. Its not right . I conclude by saying I LOVE MY KIDS. I am a good DAD. I do not demonize my boys against there mom. I respect there love for her. I encourage it. Its not the same on the other side for me. What is the system doing for Dads like me? Does it even care? What is fair? Assign mediators to settle disputes. Set a standard. Eliminate loopholes and make decisions final. Do something about the SCPD because there is a policy in that department to avoid making Domestic Incident Reports. Not all issues are a civil matter go to court. They are not following NYS guidelines. Check the Domestic Incident Reports they are using. Very very disappointing!!!

Dear Beenthere and Glkb:

Your frustration and disappointment with the New York divorce system is completely justified.  I believe your voice speaks for many frustrated families caught up in the arbitrary judicial system.  I agree whole-heartedly that standards need to be set such as mandatory mediation and parenting/co-parenting programs for divorcing parents with minors under age 18 – like many counties throughout the U.S have done.

For example, in Missouri, legislators passed a law in 1998 to mandate divorcing parents with minors under age 18 to attend a parenting program when they file for divorce.  In Dade County Florida, and in many other jurisdictions throughout the country, a program to “help kids cope with divorce” is mandatory. In these counties a final divorce decree will not be granted to any couple whose minor children have not participated in the program.  These are but examples – many other progressive counties throughout the country have followed suit.

Divorce is a process that inevitably involves change and a restructuring of the family. Parents need to be educated about what to expect from their children and learn tools to help them cope with these changes post-divorce.  Parents can help reduce their children's risk of having emotional and behavioral problems by effectively co-parenting and avoiding hostile exchanges.

But effective co-parenting is not something that comes natural nor is it the first thing hostile and emotional divorcing couples at war over finances and children want to do.  Hence, the reason why parenting and co-parenting courses should be mandatory – as should mediation.

While mediation, parenting and co-parenting programs may not solve every divorce issue, the benefits for divorcing families and their children who participate are overwhelmingly positive – it is certainly a huge step in the right direction – and should be mandatory.

Steven Carlson, The Custody Coach™

I too am completely frustrated by the divorce process in New York State.  I retained my attorney in January 2006; we have yet to go to trial.  My husband does not want the divorce because of religious beliefs, so is fighting this every step of the way.  So far I have spent over $9,000 on legal fees and have yet to see the inside of the courtroom.  The judge and lawyers have had four meetings that neither my husband nor I were allowed to be a part of.  I finally have a trial date in November.  When I told my lawyer I would like to be divorced by February 2009 he told me “don’t count on it.”  It’s crazy that it should take so much time and money for a simple divorce.  Our children are not minors and the only asset we have of value is a modest house.  By the way, before retaining attorneys we tried mediation.  At one point in discussing the disposition of the house the mediator told me that I was “living under my husband’s bricks” and that I shouldn’t even have a say in the sale of the house! 

A question for our panelists:

 Why do you think there is pushback against no-fault divorce in New York? Is it general cultural resistance to anything that might expand divorce? Or are there legal and social implications for changing the law that might have negative consequences? Some say that fault-based divorce gives women more leverage in the process, but others say it tends to disempower women.

 The magazine Legal Affairs ran a debate on this issue in 2006, and Wharton Professor Justin Wolfers came up with this insight, based on his research:

"...states that adopted unilateral divorce laws saw a large decline in rates of domestic violence (and also spousal homicide), while other states actually saw domestic violence rates rise.... The logic for this result also seems quite powerful: If a woman is empowered to leave an abusive marriage even against the objection of her abuser, she may leave."

Have you worked with cases involving domestic violence? Do you see a link between the legal structure of the divorce system and the barriers spouses face in escaping abuse?

My divorce began in July 2003 and is still pending in Nassau County.  I have done everything the Court has ordered including attending and completing the P.E.A.C.E. Program in August 2003 (to date the Defendant has not attended).  I have no contact with my three children who have been severely and deliberately removed from my life. I have been locked and barricaded from my home, directly against the order of the Court. I am ordered to pay all household expenses, tuition and very expensive Temporary Child Support and Maintenance with no funds left to even place a roof over my head. Although court ordered, I have not been advised of my children's health care, dental care or educational matters. As a prominent, successful professional, I am broke and in debt. 

My trial began on June 12, 2007.  After less than one day of testimony, the Judge declared an 8 week hiatus and ordered my children into deprogramming therapy.Although numerous letters were sent to the Law Guardian and the Judge regarding the Defendant's non compliance with the order for therapy, his pleas were ignored.  The 8 week hiatus turned into 8 months and the trail recommenced on January 23, 2008.  On that day, the Judge ordered both parties to leave the courtroom and go for random drug and alchohol testing.  I went - the Defendant did not.  The next day she was charged with 2 counts of contempt by the Judge.  Immediately, we began an Emergency Custody Hearing.  It is important to note, there has been no custody awarded to date (temporary or permanent).  She was found guilty of contempt for not obtaining the drug and alchohol testing, penalty being held in abeyance.  The second contempt charge (failure to attend therapy)and the Emergency Custody Hearing are still pending.  On January 28, 2008 the last day of trial, the Judge ordered again that the parties and the children attend therapy and appointed a Parenting Coordinator and this time the Defendant pays. She went for a while, filed 2 appeals with the Appelate Court in Brooklyn and then just stopped claiming she has no money.  Trial was scheduled in April, in June and now in August.  I am certain there will be more postponements as there always are.

I am fighting to rescue my chidren.Their rights to have both parents in their lives have been violated.  My rights as a father have been obliterated .  My children need therapy and no matter what the court or the therapists  tell her about the damage being done to the children, she will not comply.  I need custody in order to have access to my children.  They are being emotionally abused and there is no end in sight. The delays and postponements have gone past 5 years .

I am desperate for any advice or direction you can provide.

Dear Meeshell2008;

Those of us who have been advocating no-fault actively for the last five years are familiar with that study that demonstrates that in  states which enacted no-fault divorce incidents of domestic violence went down. As you are undoubtedly aware our state legislature is historically non-functional. So one of the reasons nothing gets in Albany done is because nothing gets done. In the case of no-fault the principal opponents are the Catholic Church , the National Oranization for Women and some domestic violence groups centered in New York City. We have consulted many domestic violence groups in the State and most of the ones outside of New York City are strongly in support of no-fault as they believe that many abused women would prefer to not have to confront their abusers in court on these subjects and would prefer to get a divorce and repair and move on with their lives.The failure to enact no-fault is emblematic of the confrontational nature of divorce in New York and until we change  the environment we will not have  real change in our divorce system.

I agree with what my colleague Hal Mayerson said about the relationship between no fault divorce and domestic violence. Domestic violence is a serious threat to the safety of many. Victims of domestic violence need courage and support to extricate themselves from their abusive relationships. Many do not have access to lawyers. The more complicated the divorce laws are for them, the less likely they are to use them. The more complicated the divorce law, the more likely the abuser will find a way to manipulate it to the victim's detriment.  

Domestic violence groups in other states support no fault divorce. Again, it is hard to understand what is going on in New York.

Hal is also right on about the quality of the New York State Legislature. It was rated the worst big state legislature in the Country by the Brennan Center at NYU Law School. In my view, it fundamentally fails in its basic responsibility to update New York's divorce law to meet the needs of our parents and children. There are proven approaches that work elsewhere. The Legislature, however, fails to consider them.

Andy Schepard 

The NYS Matrimonial Commission, commonly known as the Miller Commission, pulled together some of the keenest judicial and legal minds in NY State and in 2006 issued a report strongly recommending, among other reforms, that New York move to no-fault divorce.   Unfortunately, little has happened on this important issue since.   Hal Mayerson and Andy Schepard have both pin-pointed the reasons for legislative inertia.   I think that our legislators in Albany hear mainly from very vocal groups that oppose no-fault divorce but do not hear much from organized groups that favor it.   Hopefully, Sunday's article in Newsday and this forum are small steps in raising public awareness.

 Dr. Steven Demby