No-fault Divorce

No-fault means that no one is alleging that anyone has done anything wrong in the marriage, but rather that the couple desire to terminate their marriage. No-fault does not require anyone to allege any of the traditional grounds for divorce: adultery, physical or mental cruelty, abandonment or desertion, imprisonment, insanity, and drug or alcohol addiction.

The liberalization of divorce that is no-fault reflects cultural changes. The law caught up with society in the 1960s. The rise of no-fault divorce can be traced to the recognition that requiring people to state the traditional grounds for divorce often led to fraud or lying; that rehearsed perjury diminished respect for the law; that society had no compelling interest making a couple stay together if the marriage has broken down and the two of them don’t want to stay together. California is generally credited with being the first no-fault state, but by the end of the 1970s all but a couple of states had some form of no-fault.

No fault offers a divorcing couple many advantages over fault divorce. No-fault makes divorce less expensive by reducing or eliminating legal battles, and because of this, a more civil environment to make support and property settlement decisions. Since the failure of the marriage is not a moral question, no-fault makes other facets of the divorce -- property settlement, support and custody -- easier to negotiate. When a couple decide to negotiate the end of marriage without assigning blame or fault, they very often dissipate some of the volatility that makes negotiations so explosive. This means they may be able to settle the negotiations by themselves or with outside help but not with a trial.

It is always advantageous to avoid a divorce trial. Because the divorce goes through the courts uncontested. That means the spouses, having agreed to end their marriage without a finding of fault, have successfully negotiated the terms and conditions of support and custody and the division and distribution of the marital estate.

For one, it probably means that they have saved themselves a great deal of money because if they cannot agree between themselves, a judge will have to decide for them. That makes for legal bills, not to mention all the enervation of battle. This is called a contested divorce.

A contested divorce is one where the couple have one or more issues, usually custody and property, that they cannot settle and are not resolved. An uncontested divorce is one without unresolved issues and one in which a final judgment can be entered without a trial. An uncontested divorce is one where all issues, including support, property and custody, have been settled, so in a very real sense, the two people who made the marriage have deconstructed it in their own way. This ends any elements of contest. No-fault means that the same two people have come to an understanding that the marriage, once alive and hopeful, somehow went wrong and died. Probably when two people achieve the rapport necessary to go through no-fault, uncontested divorce, they have achieved an understanding that both of them contributed to the failure of the marriage.

A no-fault, uncontested divorce makes the logistics of divorce easier and less expensive. Nothing in a no-fault, uncontested divorce, however, speaks to the sadness and sorrow of a family torn apart. No court nor judge can mitigate the pain and suffering of divorce.

Sometimes a spouse contests a divorce for all kinds reasons, some of which are not in his or her long-term best interest. Divorce is so wrenching an experience that people sometimes do not think clearly. One spouse may want to reconcile, so he or she hopes for a change of heart in the other. Or one spouse, hurt and angry by the other’s rejection, may want to make it difficult. Sometimes, one spouse wants additional time to hide assets that would be distributed. A party may have religious or philosophical objections to ending a marriage.

No-fault divorce strips out a legal recognition of blame, and to some this is a disadvantage of no-fault. Thus, the injured or rejected partner, perhaps the one who does not want the marriage to end, has little financial and emotion recourse.

Moralists argue that no-fault divorce makes it too easy to get a divorce.

When a couple marry with the hope of life together and the marriage fails, easy divorce is an oxymoron. Contrary to popular opinion, few people enter into a divorce lightheartedly. A divorce is wrenching, and for most people going through one is, under the best conditions, an experience in mental and emotional anguish and sadness. Even when divorce is the only answer, it is painful and dislocating, and when it becomes a war, the idea of victory and winning is an illusion. The belief that "divorce breeds divorce," meaning that the easy availability of divorce makes other couples more likely to divorce, seems without foundation. Divorce is not contagious.

The terms Incompatibility, irreconcilable differences and irretrievable breakdown are not fault grounds, but each is a ground for a no-fault divorce.

Incompatibility is not a claim of wrongdoing by any spouse. It is instead a statement of the condition of the marriage. In a no-fault divorce, if the spouse suing for divorce gives incompatibility as the reason, he or she is saying that there is a personality conflict that is so severe that married life is impossible. Incompatibility and irreconcilable differences both mean that essentially the husband and the wife just don’t get along anymore. But in a legal sense, irreconcilable differences means that they cannot agree on certain fundamental issues and never will. Judges, satisfied with the claim itself, usually don’t ask what the irreconcilable differences are. In any given local court, a lawyer knows whether a given judge inquires about the particulars of irreconcilable differences. Most do not.

A classic irreconcilable difference is the complete failure to agree on how to raise any children of the marriage. Another classic irreconcilable difference is when one partner wants children and the other does not.

An irretrievable breakdown – sometimes called an "irremediable breakdown" – happens when the couple cannot live together at all, usually because one spouse has moved out of the marital home and/or refuses to work toward any sort of reconciliation. Judges usually don’t ask what the irretrievable breakdown is, being satisfied with the claim itself. Once again, an experienced lawyer knows if a particular judge is in the habit of inquiring into the breakdown.

In most states, the voluntary separation of a couple is adequate grounds for a no-fault divorce. In fact, most states require the separation of the couple as a condition precedent to obtaining a divorce.

Sometimes when a marriage is failing, one spouse just leaves, and tells the other he or she will not be back. This in itself does not meet the ground of abandonment or desertion because many couples have up and down marriages punctuated by these less then formal departures. These are people who cannot live together but they cannot live apart.

However, in those states that still have abandonment or desertion as grounds for divorce such a departure would be considered abandonment or desertion. Some states have laws saying that if one spouse has moved out, it demonstrates an irretrievable breakdown of the marriage, sufficient for a divorce.

On its face, moreover, if the husband or wife moves out and refuses to return, one could safely say that the marriage is on its last legs.

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