USA vs France; Divorce Laws

I was recently interviewed for an Associated Press article comparing the divorce laws in France with those in the USA.  In France, if either spouse refuses divorce, the other spouse must either prove adultery or mistreatment or, in the alternative, separate for at least two years, in order to get a divorce.  However, in France, if the couple does agree on the divorce, they can divorce quickly and there is no need to provide any reason to the court for divorcing.  For the couple that cannot agree, the spouse who is seeking the divorce will have a potentially difficult burden of proof, if he or she does not want to wait through a two-year separation.

Thus, in France if the couple can agree to divorce the process is a bit easier than in New York.  In New York, even a couple that agrees to divorce, will need to either separate for one-year prior to divorcing or inform the court that there has been either adultery or other good cause in order to divorce without waiting.

A divorce that does not require a waiting period or the need to allege misconduct is commonly known as a “no-fault” divorce.  New York, unlike most other states in the USA, does not recognize “no-fault” divorce without prior separation.

The big news in France is that, those who want a divorce but cannot get their spouse to agree and, thus, are trying to prove their spouse has committed adultery to avoid waiting two years, may now use cell phone text messages in court as proof.

Similarly, in New York, if you want a divorce, but do not want to wait through a year of separation, you too may find yourself trying to prove adultery or other misconduct in order to get a divorce.  In New York, assuming that your spouse is fighting the divorce, merely claiming that your spouse has committed adultery is not enough.  In addition to the allegation, you will need to prove, through third-party corroboration or other evidence, that adultery has occurred or, at least, that there was both an opportunity and what the court calls a “lascivious desire.”

The trend in France, as in most states in the USA, has been toward making it easier for married couples to divorce.  As recently as 2004 the waiting period in France was six-years.  Thus, as these trends continue, it is likely that no-fault divorce, without prior separation, may one day be available in New York.

It is worth noting that non-French nationals can divorce in France if the parent, with whom the minor children reside, lives in France or if the other spouse, who is not bringing the divorce action, resides in France.