The Texas GOP in releasing their 2010 State Republican Party Platform have raised considerable amount of controversy over their ultra-conservative positions on criminalizing gay marriage, regulating school teaching of alternate theories to evolution, banning pornography, and other issues.
Included in the Platform is also an "urging" that the Texas legislature rescind no-fault divorce laws stating "We believe in the sanctity of marriage and that the integrity of this institution should be protected at all levels of government." Not surprisingly, the Texas GOP has joined the Catholic Church here by claiming that no-fault divorce is an attack on the "sanctity of marriage."
The Catholic Church recently claimed that allowing no-fault divorce in New York would raise the divorce rates in New York. Interestingly, the divorce rates in New York, though low compared to all 50 states (ranking 33rd), are still higher than a state like Massachusetts where No-Fault Divorce has been the law for more than thirty years (3.4 per 1000 people per year in New York vs. 2.5 per 1000 people per year in Massachusetts according to StateMaster.com).
The disconnect in this argument stems from the faulty assumption, of both the Texas GOP and the Catholic Church, that making it harder to get divorced and protecting the sanctity of marriage is the same thing. But they are not the same thing. Protecting the sanctity of marriage should be about raising the quality of marriages, about educating people before they get married, and even about saving people from bad marriages. Does forcing a victim of domestic violence to go through a harder process to escape his/her abuser protect the sanctity of marriage or give marriage a bad name?
Making it harder for people to obtain divorces doesn't lower divorce rates, but it does increase domestic violence, crowd courts, and discourage mediation. How do any of these consequences protect the sanctity of marriage?
Showing posts with label New York. Show all posts
Showing posts with label New York. Show all posts
Thursday, May 30, 2013
Tuesday, December 4, 2012
Follow Up Story: No-Fault Divorce is now the law in all 50 states!
As discussed at length in a previous post ("Is No-Fault Divorce a Good Thing? It may soon be the law in all 50 states."), pending legislation in New York would create a no-fault divorce statute in that state. Until recently, New York was the last state which still did not have a no-fault divorce option (without a significant waiting period).
The signing of the new law by Governor David Paterson has now brought New York up to date with the status of divorce law in the other 49 states. To read more about the new New York law read "No-Fault Divorce Signed into Law in New York" which also contains the text of the law.
Review our previous post for discussion of the many benefits of no-fault divorce.
The signing of the new law by Governor David Paterson has now brought New York up to date with the status of divorce law in the other 49 states. To read more about the new New York law read "No-Fault Divorce Signed into Law in New York" which also contains the text of the law.
Review our previous post for discussion of the many benefits of no-fault divorce.
Saturday, November 17, 2012
Is No-Fault Divorce a Good Thing? It may soon be the law in all 50 states.
According to a New York Times article, the New York State legislature recently approved legislation that would allow No-Fault divorces in New York. The state of New York is the last state that still requires one spouse to have committed a wrong (or at least to take the blame) for the dissolution of a marriage.
Many, including the Roman Catholic Church, oppose the change because they believe it will raise the divorce rates in New York. Interestingly, the divorce rates in New York, though low compared to all 50 states (ranking 33rd), are still higher than a state like Massachusetts where No-Fault Divorce has been the law for more than thirty years (3.4 per 1000 people per year in New York vs. 2.5 per 1000 people per year in Massachusetts according to StateMaster.com).
If No-Fault divorce doesn't cause a rise in divorce rates, then what is the impact?
According to a New York Times op-ed column, there are potential advantages a. The advantages include an 8-16% reduction in wife's suicide rates and a 30% reduction in domestic violence (according to a University of Pennsylvania report by economists Betsey Stevenson and Justin Wolfers). In addition, the ability of one participant to end the marriage can change the bargaining power in the relationship causing both partners to change how they view the marital relationship. This could cause either party to invest less in the marriage, or could cause both parties to be more attentive to unhappiness in the marriage.
A valuable impact of allowing no-fault divorce, though, can be the ability of more couples to use mediation. Because neither party needs to accept fault, they are more likely to try and work out their differences with a mediator than litigate their case. Increasing the number of mediations could be the single-most positive impact of no-fault divorce, because, as one study found, mediation increases the likelihood of settlement, improved co-parenting relationships between parents, and improved the relationship of non-custodial parents and their children.
Sounds like it's about time New York joined the other 49 states in offering a No-Fault option.
Many, including the Roman Catholic Church, oppose the change because they believe it will raise the divorce rates in New York. Interestingly, the divorce rates in New York, though low compared to all 50 states (ranking 33rd), are still higher than a state like Massachusetts where No-Fault Divorce has been the law for more than thirty years (3.4 per 1000 people per year in New York vs. 2.5 per 1000 people per year in Massachusetts according to StateMaster.com).
If No-Fault divorce doesn't cause a rise in divorce rates, then what is the impact?
According to a New York Times op-ed column, there are potential advantages a. The advantages include an 8-16% reduction in wife's suicide rates and a 30% reduction in domestic violence (according to a University of Pennsylvania report by economists Betsey Stevenson and Justin Wolfers). In addition, the ability of one participant to end the marriage can change the bargaining power in the relationship causing both partners to change how they view the marital relationship. This could cause either party to invest less in the marriage, or could cause both parties to be more attentive to unhappiness in the marriage.
A valuable impact of allowing no-fault divorce, though, can be the ability of more couples to use mediation. Because neither party needs to accept fault, they are more likely to try and work out their differences with a mediator than litigate their case. Increasing the number of mediations could be the single-most positive impact of no-fault divorce, because, as one study found, mediation increases the likelihood of settlement, improved co-parenting relationships between parents, and improved the relationship of non-custodial parents and their children.
Sounds like it's about time New York joined the other 49 states in offering a No-Fault option.
Thursday, September 6, 2012
New Divorce law in New York includes Temporary Spousal Support Guidelines
UPDATE: There is pending legislation for major changes to the alimony statute in Massachusetts. The Alimony Reform Act of 2011 was filed on January 18, 2011 and you can learn more about the Act at MassAlimonyFormula.com or in our recent blog post highlighting the differences between the bill and the current law.
In March of 2010 Attorney Justin Kelsey of Kelsey & Trask, P.C. was contacted by the NYS Law Revision Commission because of his involvement in co-authoring the Divorce Spousal Support Calculator. The NYS Law Revision Commission was asked by a member of the New York State Assembly to investigate how other states were addressing the issue of alimony formulas. Attorney Kelsey discussed the issues at length during a telephone conversation with the executive director of the Commission and expressed his opinion (as described in a past blog post) that a formula at least has the advantage of treating everyone the same and offering consistency to the treatment of alimony by different Judges. It is possible that Attorney Kelsey played some small part, therefore, in the newest changes to New York's alimony provisions.
In addition to adding No-Fault Divorce, a recent New York law that went into effect this month also contains a formula for calculating "temporary maintenance." This temporary spousal support defined in New York Domestic Relations Law Section 236 Part B(5-a) only lasts until either party dies or a final award of maintenance is awarded under Part B(6). Although, there is no formula for post-divorce maintenance, the temporary maintenance formula would likely be instructive for long-term maintenance in many cases.
Similar to the Massachusetts statute, post-divorce maintenance is based on numerous factors including length of the marriage, age and health of both parties, income-earning capacity, needs of the children etc. The calculation for temporary support in the new statute, however, is based on a formula, with the ability to deviate if application of some of these same factors suggests the calculated award is unfair. Essentially this sets up the presumption of a formula with the ability for parties to still argue against the use of the formula.
The formula is explained in Appendix B of the Temporary Maintenance Guidelines Worksheet available on the NY State Court's website. Essentially it calculates whether the payee's net income is more than 2/3 of the payor's net income, in which case there is no alimony award. If the payee's net income is less than 2/3 of the payor's net income then the award will be the lessor of
a. 30% of payor's net income minus 20% of payee's net income; or
b. 40% of the total net income of both parties minus the net income of the payee.
In addition there is a low income adjustment in some cases and the temporary maintenance formula only applies for payors whose net annual income is below $500,000.
For more information and a critique of this new law read this news story on YNN, or this blog post on Legal Match Law Blog.
We will not be updating the Divorce Spousal Support Calculator to include this formula at this time because the New York formula deals only with temporary maintenance orders, while the other formulas currently included in the calculator are intended for post-divorce support.
In March of 2010 Attorney Justin Kelsey of Kelsey & Trask, P.C. was contacted by the NYS Law Revision Commission because of his involvement in co-authoring the Divorce Spousal Support Calculator. The NYS Law Revision Commission was asked by a member of the New York State Assembly to investigate how other states were addressing the issue of alimony formulas. Attorney Kelsey discussed the issues at length during a telephone conversation with the executive director of the Commission and expressed his opinion (as described in a past blog post) that a formula at least has the advantage of treating everyone the same and offering consistency to the treatment of alimony by different Judges. It is possible that Attorney Kelsey played some small part, therefore, in the newest changes to New York's alimony provisions.
In addition to adding No-Fault Divorce, a recent New York law that went into effect this month also contains a formula for calculating "temporary maintenance." This temporary spousal support defined in New York Domestic Relations Law Section 236 Part B(5-a) only lasts until either party dies or a final award of maintenance is awarded under Part B(6). Although, there is no formula for post-divorce maintenance, the temporary maintenance formula would likely be instructive for long-term maintenance in many cases.
Similar to the Massachusetts statute, post-divorce maintenance is based on numerous factors including length of the marriage, age and health of both parties, income-earning capacity, needs of the children etc. The calculation for temporary support in the new statute, however, is based on a formula, with the ability to deviate if application of some of these same factors suggests the calculated award is unfair. Essentially this sets up the presumption of a formula with the ability for parties to still argue against the use of the formula.
The formula is explained in Appendix B of the Temporary Maintenance Guidelines Worksheet available on the NY State Court's website. Essentially it calculates whether the payee's net income is more than 2/3 of the payor's net income, in which case there is no alimony award. If the payee's net income is less than 2/3 of the payor's net income then the award will be the lessor of
a. 30% of payor's net income minus 20% of payee's net income; or
b. 40% of the total net income of both parties minus the net income of the payee.
In addition there is a low income adjustment in some cases and the temporary maintenance formula only applies for payors whose net annual income is below $500,000.
For more information and a critique of this new law read this news story on YNN, or this blog post on Legal Match Law Blog.
We will not be updating the Divorce Spousal Support Calculator to include this formula at this time because the New York formula deals only with temporary maintenance orders, while the other formulas currently included in the calculator are intended for post-divorce support.
Saturday, August 11, 2012
Same-Sex Marriage is Getting Easier, But Same-Sex Divorce is still Tricky
Since 2004, same-sex couples have been allowed to marry in Massachusetts. A handful of states have followed suit and begun allowing gay marriage (namely, Connecticut, Iowa, New Hampshire, New York, Vermont, and the District of Columbia). Some couples have traveled to these states to obtain a same-sex marriage, even though their home state does not permit or recognize their marriage. Further, some same-sex couples that have married in states permitting their marriage have since moved to states that do not recognize their union.
What happens if these couples want to later dissolve their marriage?
A few states that do not permit same-sex marriages, most vocally Texas, have refused to recognize same-sex divorce as well. In opposite-sex marriages, marriages from one state are recognized by all of the other states. However, the federal law DOMA (the "Defense of Marriage Act") states that no state is required to recognize same-sex marriages from other states. Therefore states that don't allow same-sex marriages can choose to not recognize same-sex marriages from other states as valid marriages.
The rationale behind not allowing same-sex divorce is that those states will not dissolve a legal relationship that they refuse to recognize as valid. For a same-sex married couple that married in Massachusetts but later moved to a state that, like Texas, which won't permit their divorce, obtaining a divorce may prove to be far more complicated than for their opposite-sex counterparts.
Massachusetts requires that parties to a divorce case must have lived together in Massachusetts, and one of the parties must still live in the state when the cause for divorce occurred. Alternatively, if the cause of divorce occurred in Massachusetts, or if one of the parties has lived in Massachusetts for one year, the state will be able to hear their divorce case. If a same-sex couple married in Massachusetts and later moved to Texas, they can't get divorced in Texas or Massachusetts unless they can meet these requirements in Massachusetts, which usually means moving to Massachusetts for at least some period of time.
On the other hand, an opposite-sex couple that married in Massachusetts but later moved to Texas would simply have to meet the jurisdictional requirements of Texas if one of them decided to file for divorce there.
This is just one of the ways that the Federal Law DOMA and the discriminatory enforcement of laws in some states relating to same-sex marriages continues to cause unequal treatment of these same-sex couples.
Should you have any questions about divorce, same-sex or otherwise, contact Attorney Justin L. Kelsey, or call 508.655.5980 to schedule a free one hour initial consultation.
What happens if these couples want to later dissolve their marriage?
A few states that do not permit same-sex marriages, most vocally Texas, have refused to recognize same-sex divorce as well. In opposite-sex marriages, marriages from one state are recognized by all of the other states. However, the federal law DOMA (the "Defense of Marriage Act") states that no state is required to recognize same-sex marriages from other states. Therefore states that don't allow same-sex marriages can choose to not recognize same-sex marriages from other states as valid marriages.
The rationale behind not allowing same-sex divorce is that those states will not dissolve a legal relationship that they refuse to recognize as valid. For a same-sex married couple that married in Massachusetts but later moved to a state that, like Texas, which won't permit their divorce, obtaining a divorce may prove to be far more complicated than for their opposite-sex counterparts.
Massachusetts requires that parties to a divorce case must have lived together in Massachusetts, and one of the parties must still live in the state when the cause for divorce occurred. Alternatively, if the cause of divorce occurred in Massachusetts, or if one of the parties has lived in Massachusetts for one year, the state will be able to hear their divorce case. If a same-sex couple married in Massachusetts and later moved to Texas, they can't get divorced in Texas or Massachusetts unless they can meet these requirements in Massachusetts, which usually means moving to Massachusetts for at least some period of time.
On the other hand, an opposite-sex couple that married in Massachusetts but later moved to Texas would simply have to meet the jurisdictional requirements of Texas if one of them decided to file for divorce there.
This is just one of the ways that the Federal Law DOMA and the discriminatory enforcement of laws in some states relating to same-sex marriages continues to cause unequal treatment of these same-sex couples.
Should you have any questions about divorce, same-sex or otherwise, contact Attorney Justin L. Kelsey, or call 508.655.5980 to schedule a free one hour initial consultation.
Friday, June 8, 2012
Your Mother Should Have Told You: Don't Bring Beer to Court
On March 21, a New York man facing a charge of driving a motor vehicle under the influence of alcohol (DUI in New York, OUI in Massachusetts) showed up intoxicated to a New York court for a hearing carrying an open can of beer, with four more cans in a bag. While this might be snickered at and mentally filed away under the "dumb guys in crime" category, it does highlight the issue of alcoholism and how it can contribute to a myriad of poor life decisions.
Alcoholism is a serious issue in many family court cases as well. Alcoholism can be a source of wasting assets, a reason one party has trouble supporting themselves, or worst of all, a parental fitness issue. Alcohol use and abuse is not only difficult to track (it won't show up on drug tests days later), it can also be difficult to prove and control.
But there are solutions for dealing with these issues in court, including the use of Breathalyzer technology and support programs. And oftentimes alcohol abuse can be proven through receipts and the pure volume of liquor being purchased. If alcoholism is an issue in your case make sure you consult with an attorney who is familiar with handling this type of issue.
In addition, if you or someone you know is struggling with an alcohol problem, we at Kelsey & Trask encourage you to seek help, whether through enrollment in a program such as Alcoholics Anonymous or otherwise.
Alcoholism is a serious issue in many family court cases as well. Alcoholism can be a source of wasting assets, a reason one party has trouble supporting themselves, or worst of all, a parental fitness issue. Alcohol use and abuse is not only difficult to track (it won't show up on drug tests days later), it can also be difficult to prove and control.
But there are solutions for dealing with these issues in court, including the use of Breathalyzer technology and support programs. And oftentimes alcohol abuse can be proven through receipts and the pure volume of liquor being purchased. If alcoholism is an issue in your case make sure you consult with an attorney who is familiar with handling this type of issue.
In addition, if you or someone you know is struggling with an alcohol problem, we at Kelsey & Trask encourage you to seek help, whether through enrollment in a program such as Alcoholics Anonymous or otherwise.
Thursday, February 23, 2012
Equitable Division: This isn't Judge Solomon's Court
I was recently directed to two articles involving Husbands, one in Germany, and another in Cambodia, that, as part of their divorce, took their half of their marital homes, literally. Not by selling and getting their share of the equity, and not by buying their Wife out of her share, they literally cut the house in half.
Don't get any ideas if you're getting divorced in Massachusetts, though.
In Massachusetts the Court is directed by M.G.L. c. 208 § 34 to divide the assets of the parties and award support based on numerous factors including the length of the marriage, health of the parties, age of the parties, income of the parties, opportunity for future acquisition of assets and income, and more.
When considering all of these factors, we often discover that an equal division of the assets, i.e. a 50/50 division, is the equitable and fair resolution. However, there are also cases where the totality of the circumstances require an unequal division. You won't find Judge Solomon in a Massachusetts' Court, though you might still find some wisdom.
P.S. Don't think it only happens in other countries. This couple in New York built a wall down the middle of their house.
Thanks to Michael Paonessa for sending us these articles.
Don't get any ideas if you're getting divorced in Massachusetts, though.
In Massachusetts the Court is directed by M.G.L. c. 208 § 34 to divide the assets of the parties and award support based on numerous factors including the length of the marriage, health of the parties, age of the parties, income of the parties, opportunity for future acquisition of assets and income, and more.
When considering all of these factors, we often discover that an equal division of the assets, i.e. a 50/50 division, is the equitable and fair resolution. However, there are also cases where the totality of the circumstances require an unequal division. You won't find Judge Solomon in a Massachusetts' Court, though you might still find some wisdom.
P.S. Don't think it only happens in other countries. This couple in New York built a wall down the middle of their house.
Thanks to Michael Paonessa for sending us these articles.
Monday, January 30, 2012
Since we have No-Fault Divorce, how about No-Fault Custody?
A recent Op-ed article in the New York times, entitled No Fault of Their Own, suggests that we should change the way custody decisions are made to minimize litigation and fighting over children. The author notes that custody battles, that leave the issue of what is in "the best interest of the child" to the Judge to decide, often result in trials over who is the "better" parent.
This is a valid point. The damage that these types of battles can cause to children warrants a different approach to family law than to the practice of other types of law. While zealous advocacy for a corporate client whose vendor screwed them on a contract might necessitate a trial or dictate destructive cross-examination, in family law this type of litigious approach hurts children.
I often explain to my clients that it is not constructive when they form their view or their goals in a divorce case with a negative comment about their ex-spouse. I want my clients to tell me what their life looks like in five years, so together we can figure out how to get them to that goal, not what they "deserve" to receive from their ex-spouse. I believe this is the point of no-fault divorce.
Similarly, I like the concept of No-Fault custody. I want my clients to tell me what is best for their children, by telling me about their children's schedules, and activities and friends. Telling me what a bad parent the other person is, doesn't describe what is best for the child. In fact it's simply a waste of time unless that parent is so bad that they are unfit.
The author of the op-ed article concludes that mandatory mediation or amendments to the way child support is calculated could help move the system towards No-Fault custody. I believe that regardless of whether couples mediate, or what the child support is, common-sense is the key to resolving custody battles. 99% of custody disputes can be solved by parents, and attorneys, who are willing to set aside the fight, participating in an open an honest four-way conference (with or without a mediator) about what is actually best for the child with reference to the child's needs and activities and schedule.
I don't know if No-Fault Custody is something the state can legislate due to the need for the law to protect against the truly un-fit parents. But I do know that less children would be harmed by divorce if more attorneys and more parents would practice No-Fault Custody.
For more information about proposed resolutions of co-parenting issues, please read our Custody page and the Association of Family and Conciliation Courts brochure: Planning for Shared Parenting: A Guide for Parents Living Apart.
This is a valid point. The damage that these types of battles can cause to children warrants a different approach to family law than to the practice of other types of law. While zealous advocacy for a corporate client whose vendor screwed them on a contract might necessitate a trial or dictate destructive cross-examination, in family law this type of litigious approach hurts children.
I often explain to my clients that it is not constructive when they form their view or their goals in a divorce case with a negative comment about their ex-spouse. I want my clients to tell me what their life looks like in five years, so together we can figure out how to get them to that goal, not what they "deserve" to receive from their ex-spouse. I believe this is the point of no-fault divorce.
Similarly, I like the concept of No-Fault custody. I want my clients to tell me what is best for their children, by telling me about their children's schedules, and activities and friends. Telling me what a bad parent the other person is, doesn't describe what is best for the child. In fact it's simply a waste of time unless that parent is so bad that they are unfit.
The author of the op-ed article concludes that mandatory mediation or amendments to the way child support is calculated could help move the system towards No-Fault custody. I believe that regardless of whether couples mediate, or what the child support is, common-sense is the key to resolving custody battles. 99% of custody disputes can be solved by parents, and attorneys, who are willing to set aside the fight, participating in an open an honest four-way conference (with or without a mediator) about what is actually best for the child with reference to the child's needs and activities and schedule.
I don't know if No-Fault Custody is something the state can legislate due to the need for the law to protect against the truly un-fit parents. But I do know that less children would be harmed by divorce if more attorneys and more parents would practice No-Fault Custody.
For more information about proposed resolutions of co-parenting issues, please read our Custody page and the Association of Family and Conciliation Courts brochure: Planning for Shared Parenting: A Guide for Parents Living Apart.
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