Defining “No Fault” Divorce

By December 6, 2013Divorce

In 2010, New York became the last state in the country to become a “no fault” divorce state. (California was the first to eliminate all fault grounds for divorce.) “No fault” means that it doesn’t matter why either party wants a divorce. All you need to get a divorce is for one spouse to say that the marriage is broken beyond repair. To translate that into legal terminology, the spouses are experiencing “irreconcilable differences.”

What is “At Fault” Divorce?

“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
  • Impotence
  • Being physically or emotionally abusive
  • Abandonment
  • Imprisonment
  • 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.

Background

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.

Comparison

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.

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