Why is No-Fault Divorce Bad?

What is No-Fault Divorce?

No-fault divorce allows you to dissolve your marriage without proving misconduct. Instead of alleging marital misconduct, such as adultery, desertion, or domestic violence, you can simply allege irreconcilable differences. Irreconcilable differences means that you and your spouse do not get along and can no longer live with each other due to your differences being too great to overcome.

History of No-Fault Divorce

Then-Governor Ronald Reagan first legalized no-fault divorce in California in 1969. By 2010, every U.S. state allowed no-fault divorces. Prior to this, states that did not allow no-fault divorce required you to prove marital misconduct in order to obtain a divorce. In many cases, couples did not “fit” into the legal definition of divorce. They had no grounds for divorce, such as abuse, adultery, or desertion—they simply did not want to remain married. Those who wanted to divorce were forced to create a fault-based scenario, such as adultery or abandonment. It was also common for couples to move to a state that offered no-fault divorce.

How Does At-Fault and Fault-Based Divorce Work?

In a no-fault divorce, you only have to allege irreconcilable differences. It is much simpler and creates less discord than fault divorces, where you must allege marital misconduct. Many couples find that they simply cannot live together, but if they sought a divorce prior to a state codifying no-fault divorce, they had to fabricate a reason for divorce.

Reasons for fault-based divorce include:

• Adultery
• Abandonment
• Imprisonment
• Physical inability to have sexual intercourse if the condition existed prior to the marriage, and the spouse hid it
• Cruelty
• Felony conviction

No-Fault Divorce States

States that still permit fault-based divorces, such as New York, Texas, Nebraska, and Louisiana, allow spouses to claim fault grounds. Fault in the divorce can affect alimony, child custody, and legal battles.

As of 2010, all states offer some form of no-fault divorce, however, 16 states only offer no-fault divorce. Those states include:

• California
• Colorado
• Florida
• Hawaii
• Illinois
• Iowa
• Kentucky
• Michigan
• Minnesota
• Missouri
• Montana
• Nebraska
• Nevada
• Oregon
• Washington
• Wisconsin

Is No-Fault Divorce a Good Thing?

While critics of no-fault divorce wish to end it, believing that it undermines the institution of marriage— you could argue that it has many benefits, including:

• Divorces are less contentious.
• Couples who just cannot live together—not because of marital misconduct but, because they are no longer compatible, have the option of divorcing without fabricating a false story about their marriage.
• No-fault divorce is less stressful on all involved, including the couple, their children, and even family members.
• The reasons for the breakup of the marriage, which can be embarrassing to some, are kept private.

What Are the Main Criticisms of No-Fault Divorce?

Some of the key criticisms of no-fault divorce include:

• Potential harm to the dependent spouse
• Concerns about public policy
• Many no-fault divorces are unilateral, meaning only one spouse wants the divorce

However, for the spouse who is the victim of marital misconduct, it can negatively affect child custody, spousal support, and domestic violence cases. In a fault-based divorce, the victim may have received more spousal support. The spouse who committed the misconduct, depending on the action, may not have received as much visitation time with their children.

Critics also complain that no-fault divorce proceedings make it much easier to splinter the nuclear family, allowing couples to divorce when they otherwise would have given the decision further thought.

How Does No-Fault Divorce Negatively Impact Families?

Critics of no-fault divorce believe that the process contributes to the breakdown of the marriage and weakens the traditional family structure. They also believe that it affects the child’s emotional well-being.

However, the alternative is living with someone you no longer love or get along with—causing more contention in the home that could lead to abuse or other dysfunction.

Who Benefits Most from No-Fault Divorce?

Many couples benefit from no-fault divorce laws, especially those in toxic relationships, needing to get out of the marriage quickly—or those seeking a quick resolution to their divorce cases.

Who Loses the Most in a No-Fault Divorce?

Some people may suffer more from no-fault divorce, including stay-at-home spouses who will face financial hardship due to the changes in spousal support, alimony, and property division. However, equitable distribution of assets and spousal support laws protect spouses who stay at home.

Additionally, some believe that no-fault divorces have more of an emotional effect on children because it is easier for spouses to navigate the divorce process. However, a no-fault divorce is often less contentious than a fault-based divorce, which may make it easier on the children, especially when a custody dispute is part of the divorce process.

Additionally, courts base child-related decisions, such as custody and visitation, on the best interests of the children. Child support is not a factor of marital misconduct as it is based on the parents’ incomes. Whether a parent is adulterous or not, does not affect how the court orders custody and visitation. However, a parent who drives drunk with the children in the vehicle, inflicts abuse or neglect on the child, may lose some or all visitation and custody rights.

How Can a Divorce Lawyer Help?

An experienced family law attorney can help you navigate the divorce system, whether you choose a no-fault divorce or a fault-based divorce. Family law attorneys can help during:

• Distribution of assets and liabilities
• Child custody battles
• Spousal support awards
• Defense strategies in contested divorce cases

Why Work with Cordell & Cordell

With decades of experience, the family law attorneys at Cordell & Cordell can guide you through the divorce process, regardless of how complicated the situation is. Contact us to see how we can help with your divorce matters at 866-323-7529 or by filling out our online contact form.