Considerations in No Fault Divorce

Divorce is the formal dissolution of a legal marriage. A divorce in which no partner is considered legally responsible, or “at fault”, for the breakup of the marriage is referred to as a no-fault divorce. The family court may dissolve the marriage after a petition from one party. With New York State Governor David Patterson’s signature of the Divorce Reform Act of 2010, no-fault divorce became law in the last of the 50 United States.

Before the introduction of no-fault divorce laws, the divorcing spouse had to allege and prove that the other partner had committed severe marital misconduct that warranted the dissolution of the marriage. This legal grounds for divorce, or fault, could include adultery, physical or mental cruelty, imprisonment, and abandonment or desertion. At-fault divorce led to abuse of the court system when one or both parties desired a divorce but were without a legal fault, inflated or manufactured charges of abandonment, cruelty, or adultery and actively committed perjury to fill the legal requirement of fault. Even when fault legitimately existed, a divorce trial could last for days or weeks, costing both spouses and the courts money, time, and emotional distress as friends and relatives were called as witnesses to private matters. By eliminating the costly legal fees associated with fault-based divorce, economically disadvantaged spouses could file for and obtain divorces with much lower financial expenditure. In many states, laws related to the distribution of shared property upon divorce were passed concurrent with divorce liberalization laws, which mandated equal distribution of marital property.

One reaction to no-fault divorce is the Fathers’ Rights movement. Fathers’ Rights proponents contend that no-fault divorce laws went beyond allowing spouses to divorce by mutual consent and allow one party to unilaterally petition the court for the dissolution of the marriage without the consent of the other party. The family court determines custody of the children, so father can be deprived of their role in childrearing because sole or primary custody of children most frequently goes to the mother. Many advocate shared custody in which children will divide their time equally between parents, unless there are circumstances that impede this arrangement, in order to ensure a more equitable distribution of parenting responsibility.

When children are involved, child custody is arranged between the divorcing spouses, sometimes with the help of a mediator. When spouses are unable or unwilling to agree on child custody arrangements, one spouse may sue the other for custody or contact rights. Spouses may sue for sole or primary custody on various grounds, including abandonment, adultery, and physical, sexual, or emotional abuse. The court may take into account a spouse’s moral fitness to parent when awarding custody, which allows the court to consider whether a spouse’s adultery or other contentious behavior would negatively affect the child. Each spouse may present evidence to support claims to custody.

No-fault divorce eliminates any requirement for litigation, but it does not eliminate a spouse’s right to sue a partner. No-fault divorce requires the divorcing spouses to agree on many elements of a divorce agreement, such as custody of children, child support or alimony payments, and the division of shared property. Most divorcing couples reach agreements on their own or through the services of court-appointed mediators, but all couples retain the right to bring suit against a partner based on these grounds.

• Divorce Laws by State: Site provides summaries and detailed information of divorce laws in each state.
• No-Fault Divorce and Child Custody: An overview of the shift from a fault-based system to no-fault divorce; article also examines child custody.
• Divorce Law: Resources on domestic and international divorce law.
• Divorce: Articles and information on no-fault divorce, child custody, and statistics on divorce rates.
• Divorce Process: Information on the process of divorcing a spouse; also includes a comparison of fault and no-fault divorce.
• Marriage and Divorce Policies: An overview of state laws governing marriage and divorce; includes sections on no-fault divorce, child custody, alternatives to divorce, and property distribution.
• Joint Custody: Tips for divorced parents with joint custody.
• Divorce in the United States: A historical overview of divorce law in the United States.
• Fault and No-Fault Divorce: An overview of the differences between fault and no-fault divorce.
• Types of Divorce: Definitions of fault and no fault divorce, separations, and annulments.