Saleem S. Rizvi, Attorney at law is an eminent attorney, writer, and speaker. He has been practicing law in the State of New York since 1990 after obtaining a master’s degree in law from Columbia University. His active practice of law and his deep involvement in community affairs for over 20 years have equipped him with penetrating insight into the community’s multifaceted issues. Please email your questions/comments to rizvi@rizvilaw.com (or call (212) 732-4336)
Alarming Divorce Rates and Our Community
A New Ground for Divorce in New York: A Blessing or a Curse?
No matter how “friendly” a divorce may appear, it’s always riddled with challenges. A contested divorce, on the other hand, is entirely a different ball game. The decision to end a relationship comes at a price, both emotional and financial. More often the passage to a divorce is traumatic, chaotic, and filled with emotions of fear, resentment, doubt, and guilt. As famously said, “ it takes a whole village to raise a child”. The same way, it takes a whole community to help build and strengthen a family; the failure of which is not just an individual loss. It essentially hurts the entire community.
Upon noticing a significant increase in inquiries regarding divorces in my own practice, I did some preliminary research whether this represented an actual increase in the number of divorces in the community or if it was simply a matter of a random increase in my practice relating to divorce cases, non-attributable to general trends. My findings confirmed my initial hypothesis; there was indeed a sharp increase in the number of divorces across New York, and in various other states.
Furthermore, certain demographic factors indicated very interesting trends for the Muslim community at large in the United States and the Pakistani community in particular. A recent survey conducted the State University of New York has shown that the divorce rate in South – Asian communities has soared to an unprecedented 31%. California ranks the highest with an alarming 37% of all Muslim couples filing for divorce with Ontario, Texas and New York following closely with 30%.
There are a number of typical factors that lead to divorces, which I too witnessed in my practice. Some of the key issues that lead to divorces are:
- Failed expectations
- Poor communications
- Negative influences of extended family members
- A genuine change in priorities
- Physical, sexual or emotional abuse
- Poor conflict resolution skills
These problems are common and have persisted well before the sudden upward shift in general divorce rates. As a non-sociologist, I can only surmise that certain socio-cultural changes must have taken place that have deeply affected the way in which South Asian- Americans seek to maintain and dissolve marriages. As a lawyer, however, I can offer some insight from the legal standpoint that can provide at least a preliminary explanation for the increase in divorce rates. For decades New York State has been a very conservative state when it comes to granting divorces. A change in traditional divorce legislation has resulted in a sharp increase in the rate of divorces. This legislation is known as the No-Fault divorce.
As of August 15, 2010, New York State has introduced the no-fault divorce option. Prior to this date, spouses could obtain a divorce only if their marriage has become vulnerable to one of the following six ‘grounds’ for divorce:
- Cruel and inhumane treatment
This is a ground that invokes divorce because one of the spouses has suffered physical or mental abuse and his or her physical or mental health will remain in danger if the marriage is not allowed to cease. (However, if the abusive treatment took place more than 5 years ago, one cannot divorce for this reason if his or her spouse objects.)
Abandonment for one or more years
Abandonment entails that one’s spouse has left, locked out and does not intend to return to him or her. Abandonment may be actual or constructive. Actual abandonment simply means when one spouse leaves the marital residence without the consent of the other spouse without intention to return. Constructive abandonment emerges out of the refusal of “basic obligation of the marital contract,” including a cessation of sexual relations.
Imprisonment for three or more years
If one spouse goes to jail for three or more years, the other spouse becomes entitled to a divorce. However, if one’s spouse was released more than 5 years ago, this cannot be used as a reason for divorce.
Adultery
Adultery counts as a strong ground for divorce, however there are certain qualifications that can limit the use of adultery as a ground for divorce. One cannot use adultery as a ground if one has encouraged his or her spouse to commit adultery, has forgiven the spouse by having sexual relations with her or him after discovering the adultery, or have committed adultery themself. Additionally, one cannot divorce because of adultery if it has been more than 5 years since the adultery was discovered. Furthermore, one cannot testify oneself for adultery, an additional witness is needed.
Written contract of separation and living apart one or more years
An “Agreement of Separation” can be a ground for a divorce if it is accompanied with at least one year of living apart. This is a mutual agreement signed before a notary and in order to obtain a successful divorce thereafter, all conditions agreed to in the agreement have to be met.
A court judgment of separation and living apart one or more years
A “Judgment of Separation” is given by the Court and it entails that the two spouses have been living apart for at least one year. All conditions of the judgment must be met. Most people do not opt for this ground, as it is just as hard to produce proof for it as it is for the divorce itself.
The recent legislation in New York offers a new seventh ground namely: Irretrievable Breakdown. This is also known as the no-fault divorce. In this case, it is no longer necessary to prove the fault of one of the spouses in breaching the marriage vow. For a no-fault divorce, all that is required is to establish in court that the relationship between the couple has broken down irretrievably for a period of at least six months. This new law also does away with the one year necessary separation agreement between two consenting spouses seeking a mutual divorce. Additionally, the court cannot grant a divorce on this ground until property, custody, visitation, spousal support, and child support have been decided first.
The introduction of the no-fault divorce significantly reduces the cost of getting a divorce by eliminating the costly process of proving which spouse is to blame for the impending dissolution of the marriage. This is another reason why divorce rates have accelerated, reflecting a 12% increase in the first seven months of the introduction of the no-fault divorce law. Counsel fees have decreased significantly since there is no longer a need to prove lengthy and complicated grounds such as abuse and adultery for dissolution.
Furthermore, the no fault option eliminates the frequent lying and creation of fictitious events and stories in order to place blame on the other spouse for breaking the marriage vow. Since it is no longer necessary to prove that the marriage vow has been breached, it is also no longer necessary to place blame on either spouse. This has expedited the process of divorce and has also allowed for more focus to be given to asset division and custody of children. Whether a no fault divorce phenomenon is seen as a blessing or a curse, I guess the answer depends on one’s perspective.
As the size of our community is growing, so are our legal problems. It is imperative that as a community, we stay abreast of legal developments and be socially aware citizens for whom the law can function as a tool available to resolve conflicts and difficulties.
The legal information provided in this article is highly generalized and it ought not to be treated as a substitute for specific legal advice.