Matrimonial Law: Collapsing Like a House of Cards?

The recent economic crisis in this country has caused many economic scholars to reflect on the root causes. Paul A. Samuelson, the first American to become a Nobel Laureate in economics, opined in a recent column in the Herald Tribune that there were perhaps several principal reasons for the decay which included the lack of government intervention to police the banks and Wall Street from obvious financial excesses, the geo-politics of the sitting President, and the pathetic alchemy utilized by the ennunciators of "excesses" that sought to change manure into gold. The financial deck of cards that were used to construct a foundation for a skyscraper of economic abuses, came back to haunt the business community and the stock market declined by some 40% during 2008, foreclosures of one-family residences reached an all time high, $700 billion dollars were earmarked for financial rescue by the government, which plan to purchase bad debts of the banks was usurped by the British plan to invest equity into failing banks. As this column is written no one seems to know what plan will work or if any formula can be applied to avert a national depression similar to that of 1929.

Is the practice of matrimonial law in New York constructed on the same faulty foundation as a deck of cards, about to implode and send litigants into emotional panic? Can anything be done now to avoid such catastrophic result? Can the New York Legislature take immediate action to rectify the wrongs that have permeated the practice of matrimonial law? Can the judicial system be saved by an immediate pay raise to judges who have served without one salary increase for the past 8 years because of political concerns rather than the pursuit of judicial excellence, as should have been the proper basis?

What is the root cause of such problems in the matrimonial arena? Like Professor Samuelson, I believe the following factors are responsible:

  1. New York is the only jurisdiction in the country that requires fault to obtain a divorce.
  2. New York is the only jurisdiction in the country that values professional licenses and enhanced earning capacities of wage earners in various fields of endeavors.
  3. New York is one of the few jurisdictions that require litigants to appear in court for no other purpose than to sit in the courtroom for sometimes hours on end without participating in any way in the court conference called by the court. This serves only to increase already out-of-hand legal fees to the clients as well as their loss of time from their work, which, in turn, creates bitter resentment for the judicial process that countenances such waste.
  4. Litigants without grounds for a divorce must seek at great expense, to change their residences to sister states of either New Jersey or Connecticut to obtain such relief and then be able to address the financial issues of the marriage in New York.
  5. Professionals who obtain licenses but cannot sell them still are subject to evaluations by the courts which may be an unconstitutional exercise by providing unequal protection under the law to non-professional spouses and business people who have no such licenses.
  6. Courts that require attorneys to submit endless papers and trial notebooks, engender needless expense.

What can New York and its Legislature do about it right now? This is the action I suggest.

  1. Enact legislation that will increase judicial salaries to come in line with attorneys compensation in the private sector. This would not only make attractive the black robes as a position of honor and respect, but also one of judicial excellence by getting the best and the brightest to apply or run for these positions, and to inject a boost in morale to sitting judges.
  2. Judges should not be forced to enter into the elective process and all future appointments should be made by a blue ribbon judicial panel selected by the Governor with the approval of the legislature houses similar to the appointments of judges to the Supreme Court of the United States.
  3. Legislation must be enacted to eliminate fault as a prerequisite for divorce, and a new statute enacted that will permit divorce based upon incompatibility.
  4. Valuation of professional licenses and enhanced earnings capacity should be prohibited.
  5. Paperwork required to process divorce litigation should be streamlined, and instead of in-person court conferences, telephone conferences should be instituted and clients should not be required to make court appearances except when their testimony is required.

If no action is taken, another example of insidious neglect will rise to the level of fiddling while New York's judicial system burns. Turning one's head and denying the mounting problems in matrimonial is akin to what the Bush administration did in contributing to the eco-catastrophe that has befallen the nation.

Elliot D. Samuelson is the senior partner in the Garden City matrimonial law firm of Samuelson, House & Samuelson, LLP and is a past president of the American Academy of Matrimonial Lawyers, New York Chapter and is included in "The Best Lawyers of America" and the "Bar Registry of Preeminent Lawyers in America." He has appeared on both national and regional television and radio programs, including Larry King Live. Mr. Samuelson can be reached at (516) 294-6666 or [email protected]

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