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Regional Archives The Altamont Enterprise, September 9, 2010

New no-fault divorce law may up collaborative settlements

By Jo E. Prout

No-fault divorce proceedings, previously accessible in every other state but New York, are now possible for couples who wish to amicably part ways. The governor signed the no-fault provision last month, and it will go into effect in October.

“It’s going to make a lot of these guys like me,” said Guilderland attorney Anthony Pietrafesa, who offers divorce mediation services, about attorneys practicing marital law. “They’re going to have to be nice.”

The revisions may affect some couples, but not others.

 “It’s kind of a quirky thing. ‘We disagree, but agree on everything else, like custody, property issues…’ Does it speed up the process? For agreeable people, yes,” Pietrafesa said. “In an acrimonious situation…[no-fault divorce] takes some of the acrimony out of it.”

Before the revisions were signed, couples wanting to divorce had to either sign a separation agreement and live apart for one year before proceeding, or prove that one party was a wrong-doer.

“Before no-fault, you had to have fault,” Pietrafesa said. Spouses had to prove abandonment, cruelty, or adultery. “One person had to say nasty things about the other.”

Now, he said, “The complaint won’t have anything nasty.”

The no-fault revision “doesn’t resolve the basic issues between people,” Pietrafesa said. Asked if it made the divorce process easier, he said, “Maybe. I don’t know. It doesn’t change the basic structure of how divorce works in New York State.”

He related a colorful story of a man who wanted a divorce and gave his wife several grounds, but his wife forgave all and refused to sign the separation agreement. A hardworking woman, she gave him no grounds for divorce, and they remained married.

Now, the man could file for a no-fault divorce, but the family would still have to agree on custody, or distribution of money, he said.

“We still require parties to come to an agreement,” Pietrafesa said.  New York, he said, is an equitable distribution state. “Marriage is an equitable partnership,” he said.

For all divorces, he said, the same income that once supported one household now must support two.

“It behooves you to come to some conclusions yourselves,” he said.

In traditional divorce proceedings, attorney fees could begin between $3,000 and $5,000, Pietrafesa said. Using mediation, a process used by many attorneys before no-fault divorce revisions, can help splitting couples “come to conclusions they hadn’t thought of,” he said. Mediation can make the $5,000 mark the end point, not the beginning, he said.

Divorce is “an expensive proposition,” Pietrafesa said. “You’ve got to be a smart consumer when you buy legal services.”

Collaborative law

Attorney Kathleen Gleeson, of Kerker & Gleeson in Albany, offers both mediation and collaborative divorce services, where couples and their attorneys meet in a series of conferences.

Gleeson said that the no-fault revisions will increase the amount of collaborative divorces, helping couples “moving forward in a respectful way, rather than focusing on who is the wrong-doer,” she said. “I think it’s a great forum for people. It’s a team approach.”

A collaborative team can include the two attorneys and a mental health provider who acts as a coach to the clients or a facilitator of conversation. The team can also call in a realtor, financial planner, or a mental health provider who is a child specialist. Each team member agrees to not go to court for either client, but to work in a cooperative way to resolve the couple’s issues, Gleeson said.

If negotiations break down, “Those clients have to then seek other attorneys,” she said.

A study by David A. Hoffman, who teaches mediation at Harvard Law School, showed that divorce fees could range from about $15,000 for mediated divorces to almost $40,000 for a collaborative divorce, and up to $155,000 for litigated divorces.

The new no-fault revisions will allow couples to “focus on what’s important,” Gleeson said. “They can focus on the issues at hand — children, not proving cruelty.”

“Divorce is tough, no matter what,” Pietrafesa said. “This isn’t a pill. There’s no easy button.”

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