Family Law FAQ

What is “No Fault” Divorce?

Historically, most states had divorce statutes based on fault. However, in the 1970s and 1980s most states adopted “no fault” divorce statutes. In a no fault divorce, the fault of one spouse is not an issue. A divorce may be granted even over the objection of one of the spouses. It is enough that a marriage is considered irreconcilable by one or both of the spouses. In the past, the court had to make the determination that one of the parties was at fault and due to his or her actions there was an irretrievable breakdown of the marriage. In a no fault divorce, the courts determination is no longer necessary. Instead, the spouse who is filing for divorce must show that there has been a breakdown of the marriage and that there is no hope of reconciliation, not that one party has caused the breakdown due to his or her behavior or actions. Moreover, since one spouse is not legally “at fault” for the divorce proceeding, there are also no defenses in a no fault divorce action.

No fault divorce was created by the legislature for multiple reasons. One reason may be the rising number of divorces over the years. Another is the criticism that divorce statutes were not looking at the real reason behind the breakdown of a marriage; it is rare that one spouse is responsible for the breakdown of the marriage and the other spouse is blameless. An additional purpose may be to lessen the harm divorce may have on the spouses and their children due to one spouse having to present distasteful details to the court of the other spouse's conduct. Furthermore, there are some situations where legislatures have deemed fault should not be a factor in a divorce. Some examples are mental illness, lengthy legal separation and incompatibility.

In states that have adopted no fault divorce, fault is commonly still a factor in determining alimony, support payments and property division. It depends on whether the legislature has abolished fault from the divorce statute in that state. Often, if the legislature has remained silent on the issue of fault, the court will deem it still a factor in determining alimony, spousal support, property division, attorneys fees and court costs, even in a no fault divorce. Also in no fault states, the moving party does not have to have proof to substantiate his or her claim that the marital relationship has broken down beyond repair.

No fault divorce statutes differ by jurisdiction. Some states may require a separation agreement prior to divorce; the length of the separation also varies according to state. Other states have a different procedure for a contested no fault divorce or an uncontested no fault divorce. Additionally, some jurisdictions require corroboration that the marriage has been irretrievably broken. This corroboration may be from the other spouse or the failure of the other spouse to deny claims of a broken marital relationship. If you are interested in learning more about the no fault divorce laws in our jurisdiction, contact our firm to schedule a consultation with a family law attorney.

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