The Miracle Called No Fault Divorce

I was reading over a colleague’s law review article the other day.  The article was about the European Union and as I read it, I was suddenly overcome by how amazing our modern world truly is and how far it has come.  The EU is comprised of 27 countries, many of which were once at war with one another at some point in history.  Today, they have come together and voluntarily given up some of their own sovereign power for the sake of creating a more stable and peaceful Europe.  Sure, these member countries derive many economic benefits from being a part of the EU, but at the same time each one must also give away some control of their own country to a collective will governed by an assortment of former economic and wartime allies and enemies.

That’s an amazing accomplishment in every sense of the word.  And it got me thinking about all the other incredible legal contrivances that we take for granted every day.  Legal concepts such as product liability, class action lawsuits, and so forth, were all once mere impossible pipe dreams, but now have become reality.  And one of the most amazing of these modern legal reforms has got to be the no fault divorce.

No fault divorce may be an unfamiliar term in the general public conscience, but among those looking to end their marital bliss, it can sound like a godsend.  A no fault divorce means that neither spouse is assigned any of the blame for causing the marriage to end and that the local laws permit the respective state the option to grant a divorce to the couple in such cases as it sees fit.  Typically all the couple or spouse applying for divorce must do is cite a permissible reasons recognized by that state as a grounds for divorce.  This can vary from state to state, but most commonly the reasons cited are irreconcilable differences, incompatibility, or irremediable breakdown of the marriage.

LegalMatch has been receiving an increasing number of requests for divorce attorneys lately.  Odd since it’s usually not until the end of summer that romances begin to wear thin.  In any case, no fault divorces signaled a great change in divorce laws because they not only made them easier to obtain, but as the name implies, traditionally divorce was only allowed by a state if fault could be assigned to one of the spouses first.  These so-called “fault” divorces were granted if the person applying for a divorce cited one of the following reasons for wanting to end their marriage with their spouse: cruelty, adultery, desertion for a specific length of time, imprisonment for a certain number of years, or physical inability to consummate marriage.

Both fault and no-fault divorces are available in most states today, but not all states allow no-fault divorces.  And in some states, no-fault divorces also require the couple to be separated (meaning live physically apart from one another) for a certain period of time before a no-fault divorce can be granted.

So what are some of the legal ramifications from choosing a no-fault divorce over a fault divorce?  Well, the most significant is the amount of liability assigned to each party.  Normally with fault divorces, more blame for the marriage failing is put on the spouse who is assigned with the fault (i.e. the one who cheated or did something wrong).  When courts or the parties themselves are dividing their assets in anticipation of finalizing their divorce, the non-faulting party is generally given a larger share of everything, along with more alimony, because they are considered less responsible for the marriage ending.  With no fault divorces, the division of assets can be more even.  Also no fault divorces may take longer to finalize in some states that require the parties go through a trial separation first.  Fault divorces require no waiting period because, well, who would want to work it out with a serial adulterer?

It’s also worth noting that in the not-so-rare case where both parties are at fault, then the courts can often decide which one is more at fault than the other.  In the old days courts could deny couples from divorcing if both spouse were at fault.  Fortunately that crazy precedent has since been revised.

The last important aspect about no fault divorces is that aside from a couple failing to complete the trial separation requirement first, this type of divorce must be granted even if the one spouse objects to the divorce.  Fault divorces on the other hand can actually be stopped by the at fault spouse if he or she can successfully raise one of the following four defenses:

1)      Condone: If the court finds that the spouse seeking the divorce condones the at fault spouse’s behavior or actions then the divorce can be denied.  For instance, if the husband knew and allowed his wife to sleep with other men, this would not be considered adultery and the court wouldn’t allow a fault divorce.

2)      Connivance: If a spouse intentionally sets up the other spouse in a situation for the purpose of achieving any of the grounds for a fault divorce.  For example, a wife sends a bunch of prostitutes to her husband and gets them to sleep with him.  This would probably be considered connivance.

3)      Provocation: This is when a spouse provokes the other spouse into doing something that would be grounds for a fault divorce, such as a husband verbally abusing his wife that she doesn’t have the guts to cheat on him.

4)      Collusion: This is when both spouse actually want a divorce, but don’t want to go through the separation requirement for a no fault divorce and instead want to get divorced immediately by agreeing to pretend one or both spouses are at fault.  If the court finds that this occurred, a fault divorce will not be granted.

As strange as it may sound that a court would be willing to block a divorce from occurring, it makes sense within the context of these defenses because of the aforementioned legal ramifications that a fault divorce carries.  Remember, you’re always entitled to a no fault divorce (as long as your state has such a law, that is), so stopping a fault divorce isn’t as big of a deal if your end goal is simply to end your marriage to your spouse.

And if it so happens that your fault divorce is somehow prevented by the court and you live in a state that disallows no fault divorces, don’t worry – chances are your marriage will more than likely be headed towards grounds for a fault divorce in the very near future.  And if it’s hard for you to prove on your own, that’s why there are lawyers.