What is No-Fault Divorce?
Back in the day, divorces were not so easy to come by as they are in
today's society. Someone seeking a divorce could only obtain one by
showing that his or her spouse was at fault and had committed an act
warranting a divorce. Irreconcilable differences was not an option.
Prior to no-fault divorce hitting the scene, a divorce applicant
typically had to allege such things as adultery, felony, abandonment,
or some other act that would rise to the level of requiring a
dissolution of the marriage. The other spouse could still seek to
defend against and fight the divorce petition.
The Introduction of No-Fault Divorce
In 1970, California introduced the concept of no-fault divorce in the
United States. This concept of no-fault in a divorce is one in which
one petitioning for a divorce is not required to show any wrongdoing on
the part of his or her spouse in order to be granted a dissolution of
the marriage. The court can simply grant a request for divorce without
any evidentiary showings of a marital contract breach or legal defenses
the respondent spouse may have to keep the marriage intact.
Prior to the establishment of no-fault divorce, those seeking a divorce
would often try to find ways to bypass the fault requirements in order
to obtain a divorce. Having a showing-of-fault requirement could be
quite difficult when both spouses had some culpability yet both did not
consent to dissolving the marriage. As a result, legal fictions started
arising as a way to creatively get around the statutory fault showing
requirement.
Advantages and Disadvantages to the
No-Fault Divorce System
There are many advantages to the use of the no-fault divorce system.
Although the institution of marriage is certainly important, it gives
individuals more say in their own relationships. Many would argue that
requiring spouses to remain in a marriage that is unhappy or, for
whatever reason, should not be maintained, is giving the government too
much control in people's private lives.
Having a no-fault system may also end up sparing spouses from enduring
harm, including emotional and physical, at the hands of the other
spouse who may seek a dangerous way to get out of the marriage. Since
the parties do not need to focus on making evidentiary showings of
fault, the divorce can be less expensive, as it makes it easier and
faster to obtain a divorce. There is no longer a drawn out process.
On the other hand, many would say that removing the showing-of-fault
requirement makes it so easy to obtain a divorce that people will no
longer respect the institution of marriage. It makes it very easy to
get married on a whim, as people can easily get out of it. This may end
up resulting in a clogging of the court system as more people choose to
petition for divorce since their own culpability will not be at issue.
States Who Have Adopted No-Fault
Divorce
Pretty much every single state in the United States has followed
California's lead in adopting a no-fault divorce system. Indeed, by
1983, every single state except New York and South Dakota had
instituted some form of the no-fault divorce concept.
In 1985, South Dakota joined the no-fault divorce bandwagon. In New
York, there is not a true no-fault divorce system. However, if both
spouses enter into a notarized separation agreement and then live
separately for a full year, it can be converted to a divorce by the
family law judge.