No fault divorce to end blame game in New York


Breaking up is easy to do

By Sergey Kadinsky

Issue of July 9, 2010/ 27 Tammuz, 5770
When Orthodox couples marry, it is often a lavish and expensive affair. But when marriages fail, spouses also, often, take the most costly (and destructive) path to a parting of ways. Recent developments in the courts and legislature could help to make divorce in New York much simpler and less financially costly.

On May 25, a state appellate court in Brooklyn upheld a beit din decision that was challenged by one of the spouses.

When they married, Jay and Rose Glatzer agreed that any future marital dispute would be decided by an arbitrator, in this case a rabbinic court. The dayanim (judges) were chosen in 2006 through the zablah process, where each spouse chooses a dayan, and those two then select the third member of the beit din. The beit din was comprised of Rabbis Peretz Steinberg, Mendel Epstein and Zalman Graus. Not satisfied with the ruling she received from the rabbinic court, Mrs. Glatzer attempted, unsuccessfully, as it turned out, to have a secular court invalidate the decision.

“It is clear that a party-designated arbitrator cannot be disqualified, as a matter of law, because of partiality,” the court ruled. “In fact, the arrangement itself was conceived so as to allow each party the opportunity to have his side represented on the tribunal.”

Mrs. Glatzer and her attorney were each fined $1,000, and required to pay court costs for bringing a frivolous lawsuit. Glatzer appealed to a higher court, but the decision and penalties were upheld.

The case spanned nearly four years from the beit din ruling to the appellate decision.

“It has been the law for a long time that people can opt out of the secular system and have their case determined by the rabbinical court,” said Mark Plaine, an attorney in Queens.

While the Glatzer decision reaffirms the ability of a beit din to settle a divorce, attorney Asher White, who often represents Orthodox clients, said that even with the ruling against Rose Glatzer, a lawsuit to dismiss an arbitrator’s decision is not always frivolous.

“You have to show that the arbitrator overreached in a one-sided decision, but unless it’s really unconscionable, it’s unappealable,” said White.

On July 1 the State Assembly passed a comprehensive divorce reform bill that had been trapped in committee for years. Current law requires a spouse to allege fault such as adultery, abandonment, or “cruel and inhuman treatment,” or be legally separated for one year before divorcing.

“Under New York State’s current law, couples filing for divorce are forced to assign blame or fault in order to validly end their marriages,” said State Senator Toby Stavisky (D-Queens). “This complicates the already stressful divorce process, oftentimes making it lengthy and expensive.”

Plaine agrees that while no-fault can ease the process, assigning blame can also benefit the accusing party. “The only utility to having a fault-based system is that it can be used to extract financial concessions from the other spouse,” said Plaine.

The bill also establishes post-marital income guidelines to ensure consistency and predictability in divorce cases. Under the current system, when one side is more persuasive than the other, the judge could award more money and property to that side. Plaine feels that constraining judges would ignore the particulars of each divorce case.

“The problem with the maintenance guidelines is trying to figure out what someone’s income really is,” said Plaine. “Each case is different. I am not a big fan of just plugging in the numbers and everyone has to live with it.”

The bill also ensures that attorney’s fees would be awarded toward the beginning of the divorce process. Senator Stavisky also said that with a significant portion of marital funds used to pay for attorneys, both sides would be granted the ability to hire lawyers at the beginning of a trial.

“Allowing judges the ability to award counsel fees early in the divorce proceedings in situations where there is a significant financial gap between the parties, will level the playing field to ensure that each spouse is being adequately represented,” said Stavisky.

Governor David Paterson is expected to sign the bill, bringing an end to New York’s status as the last state without no-fault divorce.