In 1969, California was the first state to sign no fault divorce into law. No fault simply means that things like extramarital affairs or abandonment are not of interest to the court as it applies to the actual divorce.
The official reason for divorce in California is “irreconcilable differences.” No fault means the court may not punish a spouse for hurtful actions when it comes to things like:
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What Does an “At Fault” Divorce Mean?
“At fault” (or “fault”) divorce refers to a legal system that only grants divorce if one spouse can show that the other spouse did something wrong. In other words, one spouse must be at fault for the failure of the marriage. Common ways of being at fault include:
- Having an affair
- Being physically or emotionally abusive
- Mental illness
The spouse seeking the divorce would need to show one of these to be true. Some states still allow at fault divorce as an option, along with no fault divorce.
At fault divorce was the norm in the U.S. less than 50 years ago. In order to obtain a divorce, one spouse had to prove a legitimate basis for divorce that was the other spouse’s fault. Even if the desire for divorce was mutual, it would not be granted without showing fault.
Eventually, people just started lying to the court and making up evidence. For instance, a husband might arrange for his wife to “catch” him having an affair (i.e., husband hires fake mistress, wife snaps picture, wife takes photo to court and gets divorce). It became well known and accepted enough that it began to tarnish the ethical reputation of the judicial system. As a result, the laws began to change.
At fault divorce can be pricey. Costs associated with gathering evidence to prove fault, along with increased attorneys’ fees, often makes at fault divorce more expensive.
Some are critical of no fault divorce systems, as they may not “punish” the at-fault spouse sufficiently. (For example, if a spouse has an affair, that spouse may still get an equal share of the property in the divorce.) Others believe it makes divorce too easy and encourages people to enter into marriage without the seriousness it deserves.
Supporters of no fault divorce point out that, for people who need it, it is faster and less expensive. They also contend that it makes it easier for someone experiencing spousal abuse to get out of the relationship.
Here endeth the lesson on no fault divorce in California. For better or for worse, it’s a system in which our state has paved the way, and now the rest of the country has followed suit.
The Rise of Irreconcilable Differences
The California family law court typically grants a divorce after finding that irreconcilable differences exist in the marriage.
The California Family Code doesn’t set out a specific definition of just what constitutes irreconcilable differences, but it does require that the breakdown of the marriage be “substantial” and not “merely trivial.” In simpler terms, the court must rule on whether the marriage is beyond saving.
Exceptions to the Rule
There are instances when the court may consider “fault:”
- Nullity (which invalidates a marriage as if it had never occurred).
- Breach of fiduciary duty.
- Domestic violence.
Even in these cases, though, the wrongdoing must be relevant, not just an attack on the other spouse’s character. For example, if child custody is an issue, it is appropriate to note that a spouse has an alcohol or drug problem and recently received a DUI.
Breach of Fiduciary Duty
While it’s true California is a no-fault state, there is one area of misconduct that can influence a number of issues. If during the course of your divorce the court finds that one spouse breached their fiduciary duty to the other, there may be serious consequences.
In this case, the law allows the court to award one spouse 100% of a community property asset when the other spouse has not acted in good faith with respect to it. What this means is that neither spouse is permitted to take unfair advantage of the other just because they may have greater control of the community assets and money.
Pro’s of No-Fault Divorce
Research shows that domestic violence and female suicide drop in states that have adopted no-fault divorce laws. Because the proof of burden is no longer left on one side or the other, the unhappy spouse is free to leave without worrying about evidence or drawn-out litigation.
Critiques of No-Fault Divorce
Some believe that a no-fault divorce makes it too easy to dissolve a marriage. Because these advocates often believe that growing up in a two-parent household is best for the raising of children, making divorce more difficult is therefore better for the structure of the family.
Also, the no-fault divorce becomes problematic when one spouse wishes to leave and the other wishes to stay married.
There is no way to prevent a no-fault divorce from going through, if there is no wrong doing that must be proven to the courts. Some couples prefer a divorce with fault in order to prove that one spouse was more responsible for the failure of the marriage, relieving themselves of guilt over failed matrimony.
Consult an Attorney
Only one spouse needs to want a divorce to file for it under no fault law. If the other spouse does not want to divorce, there isn’t much he or she can do other than try to delay it through legal means. This often results in greater costs and, sometimes, the court may order payment of the other spouse’s attorneys’ fees for their unreasonable conduct.
Keep in mind that you can still get temporary orders for spousal support and/or child support, custody and visitation while your divorce is in progress. A consultation with a family law attorney will help you determine your best options.