Considerations in Florida No Fault Divorce was last modified: October 30th, 2016 by Howard Iken

Considerations in Florida No Fault Divorce

January 1, 2010, was actually an important milestone in American law, marking the 40th anniversary of the no-fault divorce. California was the first state to introduce no-fault divorce in 1970, but was soon followed by many other states during the 70’s, 80’s and 90’s. By 2010, all states except New York had implemented some form of no-fault divorce, and New York finally joined the ranks later in 2010. Prior to no-fault divorce, one spouse was required to name a specific reason for the divorce—even if both spouses wanted to divorce.


The “fault” could be adultery, cruelty, or a litany of other reasons for spouses to add insult to injury throughout the divorce process. Because fault was required, even those spouses who very agreeably no longer wanted to be married, were forced to make up untrue statements in order to get divorced. In an interest to promote a more honest approach, lawmakers saw the wisdom of no-fault divorce. Some states still offer the option of naming a fault during divorce, however the state of Florida is strictly no-fault.


This means the court will not assign fault to either party for the divorce. One party in the divorce must only state the marriage is “irretrievably broken,” as the reason for divorce. This is also known as irreconcilable differences—the spouses are no longer able to get along. While commonplace, no-fault divorce is hardly without its critics. In fact, the state of Michigan is attempting to remove no-fault divorce as an option for couples with children—or for couples in which one spouse does not want to be divorced.


Benefits of a Florida No-Fault Divorce


no fault divorce in floridaIn general, no-fault divorce tends to be less humiliating and demeaning for both spouses. Neither spouse is required to assert the other has done anything wrong, allowing both spouses to—somewhat—protect their reputations. Absent a requirement to point fingers, no-fault divorces just might be a bit less stressful for all those involved. Those who believe in no-fault divorce believe it also has benefits for the children involved. After all, do the children really need to know that Daddy was seeing someone on the side or that Mommy spent the family savings gambling at the racetrack? As you can probably imagine, however, even when it is not necessary to claim fault in a Florida divorce, any divorce can turn adversarial, dragging the children right into the fray. The Fathers’ Rights movement pointed to no-fault divorce as something that would allow spouses to divorce with no mutual consent involved.


Since the family court determines custody of children of the marriage, fathers felt they could be deprived of their role in raising their children through no fault of their own, since sole or primary custody often went to mothers. Even in highly adversarial divorces, however, the concept of the mother as the parent who automatically receives custody has changed dramatically. Florida courts attempt to eliminate preference for either parent during a custody hearing by focusing solely on the best interests of the child. Other potential benefits of a Florida no-fault divorce include:


  • Many believe no-fault divorce significantly reduces domestic violence in marriages. Prior to the implementation of no-fault divorce, those in an abusive relationship (primarily women) were required to prove that abuse in order to get away from their abuser.
  • The advent of no-fault divorce correlated to a reduction in female suicides, which was likely tied to domestic violence. Women who felt trapped in their marriage, feeling there was no escape from violence, sometimes chose suicide as a means of escape.
  • When there are no children of the marriage, bitter litigation and conflict tend to be reduced when no-fault divorce is implemented.
  • In a no-fault divorce, less private information is made available to the public.
  • No-fault divorce reduces the amount of time it takes for a divorce to be completed, which also makes it more affordable to get a Florida divorce.


Problems with a Florida No-Fault Divorce


50/50 custody trends
Those who oppose no-fault divorce believe it could potentially make divorce altogether too easy for spouses to split up their family. In other words, in order to preserve the advantages for children which come from growing up in a two-parent home, then perhaps placing some barriers to divorce in front of parents could be a good thing. Divorce generally lowers the standard of living for the spouse in the weaker financial position, often the wife, who possibly put her education or career on hold to promote her husband’s education and career or raise children.


Problems can also arise when one parent wants to move away with the children following the divorce, leaving the other tied to a current job or family in the current residence. On the flip side, a divorcing parent who wasn’t all that involved in child-rearing may simply walk away, leaving the other to cope with raising the children alone. Critics of the no-fault divorce believe making divorce more difficult actually helps the children of divorce in the long run. In short, the cons of a Florida no-fault divorce include:


  • If one party wishes to remain married, they cannot stop a no-fault divorce. An astonishing three-quarters of all divorces have one party who wants to at least try to save the marriage.
  • More children are being affected by divorce, since some claim the divorce rate increased significantly following no-fault divorce. On average, most studies found no-fault laws increased divorces by 20-25 percent, and in no states did no-fault divorce actually decrease the divorce rates. This means considerably more children are the products of broken homes.
  • Fathers may have less say in the divorce, as well as in custody decisions.
  • No-fault divorces tend to reward wrongdoers—or at the very least, fail to penalize them.


Other Issues Related to Florida No-Fault Divorce


Some divorcing spouses simply want to be able to be able to show the other was responsible for the failure of the marriage, therefore may not find no-fault divorce the preferable way to split up. However, imagine making the tough decision to divorce, then being unable to do so unless you could truthfully claim serious fault. In a fault divorce, the other spouse—who may not want the divorce—has the opportunity to offer a valid defense to any accusation of fault. If the judge believes the defense, he or she may simply refuse to approve the divorce.


Covenant Marriage Also Makes Divorce More Difficult


Three states—Arkansas, Louisiana and Arizona, have established covenant marriage which also makes a divorce more difficult to obtain. When a couple in those states engages in a covenant marriage, they must first undergo premarital counseling, then agree to accept fewer grounds for divorce should the issue ever arise.


Can Naming Fault in a Florida Divorce Help at All?


So, should you wonder whether serious misbehaviors during your marriage could be used to your advantage—or disadvantage—during your Florida divorce, the fact is, most Florida residents take advantage of a no-fault divorce. Spouses cannot claim fault as a basis for obtaining a divorce, however they can claim fault as a basis for being awarded more of the marital assets. As an example, the wife may tell the judge her husband has been committing adultery for the last two years of the marriage, spending considerable amounts of marital assets on his mistress. So, while these facts play no part in whether the couple can get divorced, a judge is allowed to award more of the marital assets to the wife in order to offset the dissipation of marital assets by the husband.


What About Parental Moral Fitness when Determining Custody?


custody-parenting-plansPointing fingers could, potentially, allow one parent to receive majority parenting time in a Florida custody battle. Again, while claiming fault makes no difference as to whether the divorce will be granted, it could matter when the judge is determining the moral fitness of each parent. A parent is allowed to ask for full custody based on such grounds as physical, sexual or emotional abuse, abandonment, adultery, drug or alcohol abuse, or other grounds as well. If the parent claiming such grounds can present evidence to support those claims, the court may consider whether such behaviors could negatively affect the child.


So, while no-fault divorce does eliminate the requirements for litigation, it hardly eliminates one spouse’s right to claim fault of the other. A no-fault divorce theoretically requires spouses to agree on the child custody, child support, the division of marital assets and spousal support. In reality, this rarely occurs. Couples who cannot come to mutual agreements on all these issues will find themselves in front of a judge who will make those decisions for them.


Others Who Oppose No-Fault Divorce


Aside from Father’s groups, some Mother’s rights groups also oppose no-fault divorce. This opposition lies in what women may be forced to give up in order to get custody of the children. As an example, many women agree to a settlement of marital assets which sacrifices many of the assets the woman would otherwise have received, simply as a means of being awarded primary residential custody.


Many religious groups also oppose no-fault divorce, believing it has led to the disintegration of marriage and family. It is argued that no-fault divorce simply makes it far too easy to break a sacred promise made between the couple and in front of God. The increase in divorce, whether due to no-fault laws or simply to the society we now live in, has led to many more children being subjected to a division of their family life, and, often, a reduction in financial resources.


People with no children who divorce are not required to ever speak to one another again following the divorce, however those with children have to remain in contact in order to raise their children. Despite the fact that courts claim to be gender-neutral, and strive to award custody and visitation which reflects the best interests of the children, about 80 percent of mothers are awarded primary custody of the children. Parental relocation or parental alienation can be a factor, causing the children to become estranged from their other parent, usually the father.


Taking Advantage of a Florida No-Fault Divorce


In order to take advantage of Florida’s no-fault divorce laws, one spouse must claim the marriage is broken, and cannot be fixed. It must be shown the marriage was legitimate and that both parties believe the marriage should be dissolved. Florida laws does offer those who have lived with a spouse who has a mental illness for three years of longer the opportunity to seek a divorce based on that fact. Two mental health experts state the mental illness is incurable and that recovery is not possible. Claiming mental incapacity as a grounds for divorce in the state is almost never used, since claiming the marriage is over, is sufficient.


Getting the Legal Help You Need During This Difficult Time

If you want to file a Florida no-fault divorce, claiming irreconcilable differences, and have questions regarding how such a move might affect custody decisions, it can be extremely helpful to talk to your Ayo and Iken Florida family law attorney. Claiming fault, even in an attempt to garner a more favorable division of assets or a more favorable custody decision can sometimes backfire, resulting in your spouse counter-claiming fault. Any additional contention added to a divorce can make it much more difficult than it has to be.


Your Ayo and Iken divorce attorney will assess your specific situation, clearly laying out your options. Having an advocate in your corner from the beginning of your divorce to the very end of child custody decisions can be a great stress-reliever, allowing you the opportunity to adjust to the changes in your life. Your divorce attorney can deal with the legal aspects of your divorce and custody issues, so you can focus on redefining your life and moving forward with your future.

I hired Howard Iken as my attorney to handle my divorce case. Not only did he secure a win for me in the eventual divorce trial, he was also successful in having the post divorce trial petitions (4) filed by my ex-husband dismissed. Mr. Iken is very professional and adept at developing strategies that are favorable to his clients. He is organized, thorough, creative and more than willing to go the extra mile. I would highly recommend Mr. Iken’s law firm to anyone seeking legal services.

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I hired Howard Iken as my attorney to handle my divorce case. Not only did he secure a win for me in the eventual divorce trial, he was also successful in having the post divorce trial petitions (4) filed by my ex-husband dismissed. Mr. Iken is very professional and adept at developing strategies that are favorable to his clients. He is organized, thorough, creative and more than willing to go the extra mile. I would highly recommend Mr. Iken’s law firm to anyone seeking legal services.

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