Paterson Pushes Same Sex Legislation; Ignores Divorces?

Well, Governor David Paterson thinks he's found the right issue to help prop up his sagging political fortunes. He's going to push a same-sex marriage bill.

While Mr. Paterson has said he would like to see lawmakers “fight it out” and debate the bill on the floor of both houses even if it fails, Albany tradition dictates that the bill is likely to come to a vote only when it has enough support to pass. Senator Thomas K. Duane, a Democrat and the bill’s chief supporter in the Senate, has said he opposes the governor’s notion of fast-tracking it. And the Senate majority leader, Malcolm A. Smith, has said he would bring the bill to the floor when it has enough support.

The same-sex bill Mr. Paterson plans to introduce is the same piece of legislation that former Gov. Eliot Spitzer introduced in 2007, said Assemblyman Daniel J. O’Donnell. The Assembly passed it by 24 votes, 85 to 61, a wider margin than expected.

Legislative determination and enactment of bills into law on this subject are far better than having the courts impose same sex marriage via judicial diktat, but there's one area of law that New York politicians have ignored for far too long and I think that same-sex marriage proponents may have overlooked this as well.

It is the flip side of having marriages. It's divorce.

New York is one of the few remaining states that requires cause. In particular, NY Dom. Rel. Sec 170 requires that plaintiffs must show one of the following:

An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:

(1) The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
(2) The abandonment of the plaintiff by the defendant for a period of one or more years.
(3) The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant. (4) The commission of an act of adultery, provided that adultery for the purposes of articles ten, eleven, and eleven-A of this chapter, is hereby defined as the commission of an act of sexual or deviate sexual intercourse, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Deviate sexual intercourse includes, but not limited to, sexual conduct as defined in subdivision two of Section 130.00 and subdivision three of Section 130.20 of the penal law.
(5) The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.
(6) The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement of separation and (d) the date of this subscription and acknowledgment or proof of such agreement of separation.

. New York is the only state that does not have no-fault divorces, which means that you do not need to state one of the aforementioned causes in order to have a divorce granted.

New York does provide the legal fiction that allows divorcing couples to divorce upon a court determination that both parties have been separated for one year.

For all those gay and lesbians out there who are thinking of marrying in New York, what about the possibility of needing to get divorced in New York? I know that's not particularly romantic, but we know that many marriages end in divorce.

Same-sex couples will have to put up with all the same miseries that New York imposes on heterosexual couples. If Paterson were smart, he would couple the same-sex marriage legislation with a revamping of the domestic relations provisions for divorce, eliminating the need for cause.

Alas, I don't expect that to happen.

Then again, if couples were allowed no-fault divorces, what would the lawyers do? Given how the Assembly is in the hands of Shelly Silver, that's a question that would mean the reform of the Domestic Relations law goes nowhere.