No Fault Divorce 1

No-fault divorce is a legal dissolution of a marriage which does not require proof of wrong-doing by either party. No-fault divorce laws allow a court to grant a divorce requested by one party to the marriage, without showing some sort of malfeasance by the other and even if the other party does not want a divorce. The only grounds for divorce in a no-fault dissolution is “irreconcilable differences.” Other versions of the same theory, depending on your state or county, may be referred to as “irretrievably broken” marriage or even “incompatibility.”

Prior to 1970, no-fault divorce did not exist in any state. California was the first state to institute no-fault divorce legislation. In August 2010, 40 years later, the State of New York finally passed a no-fault divorce law, becoming the last state to pass such legislation. All 50 states and the District of Columbia now allow no-fault divorces.

Some states do have lengthy separation requirements and/or joint filing requirements before a no-fault divorce will be granted. And some states still have at-fault divorce proceedings which can be chosen instead of no-fault proceedings.

Is Fault Ever Considered by the Court in a No-Fault Divorce?

“No-fault” does not necessarily mean that inappropriate behavior will not be taken into account by the court at all. In many (but not all) states, the behavior of the parties can be legally considered in determining the equitable division of property (though the division will rarely skew too far from a 50/50 split) or even spousal support amounts. So, no fault is necessary to have a divorce granted but fault is not always completely irrelevant to the proceedings.

Fault is generally not considered when determining child custody unless the particular wrong-doing affects a party’s ability to parent and puts the child at emotional or physical risk. Abuse, addiction and abandonment will be relevant “fault” accusations in a custody matter; adultery (in most cases) will not be considered relevant to custody by the court.

Requirements for divorce prior to the enactment of no-fault divorce

Prior to the implementation of no-fault divorce, divorce could be obtained only by showing that one party to the marriage was at fault for the demise of the marriage by some culpable acts such as adultery, abandonment, abuse, cruelty, or commission of a felony. Just as in any civil lawsuit, the responding party could then plead a variety of defenses.

If the pleading party failed to prove the culpable act or the judge accepted the responding party’s defense, the divorce might not be granted and the parties were forced to remain married.

The result in most of these older cases eventually was that parties used the least offensive grounds – in many states, this was “cruelty” – and then exaggerated or outright lied to satisfy the requirements for divorce.

California’s Family Law Act of 1969

California’s Family Law Act of 1969 (effective January 1, 1970) replaced the old common law action for divorce with a statutory proceeding for dissolution on the grounds of irreconcilable differences. Those grounds were accepted by the court as true, based on the sworn assertion of either party of the marriage.

Other states follow

Between 1970 and 1977, eight more states adopted no-fault divorce laws. By 1983, every state but South Dakota and New York had some form of no-fault divorce. South Dakota adopted no-fault divorce in 1985.

Until August 2010, New York divorce law allowed no-fault divorce only if both parties notarized a separation agreement and lived separately for one year. A true no-fault divorce bill was enacted in New York in 2010.

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Discussion

  • katie

    My question in that i have a friend that was married in georgia and his ex moved to texas wouldnt come back and filed for divorce. He did not go to texas for the court date as his mom was very ill and he did not want to get a divorce. The divorce was granted and she got custody of the children even though he did not sign the papers or agree to anything. He has since moved to texas and want to know if there is anything he can do to get joint pshyical custody of his children. What does he need to do?