No-Fault Divorce

No-Fault Divorce

In October of 2010, New York’s no-fault divorce law went into effect, the last of the states to adopt what is now considered the standard for divorce, though not all states use the term no fault. The first state to do away with the requirement that fault be established in order to obtain a divorce was Oklahoma in 1953. But in 1970, new California law ultimately changed divorce forever, and other states began to follow their example.

What is a no-fault divorce? Simply put, it means no one is at fault for the failure of a marriage. While all states have a way to divorce without stating fault, some still allow fault divorces as well. Exact law differs from state to state, but the accepted ground for divorce is generally based on the idea that the relationship is broken and irreparable. Terms like irretrievable breakdown of marriage, irreconcilable differences, incompatibility and insupportability are all used as permissible justification for pursuing a divorce.

In some states, the grounds may be twofold: the breakdown of the marriage and a requirement for couples to be legally separated for a specific amount of time. It is also important to understand that even with the practice of no-fault divorce, some courts do take into account the behavior of the parties to determine a fair and equitable division of property and debts, and determine custody and child support of the minor children.

In the past, divorce was determined by fault, one spouse claiming and establishing the other spouse was to blame. Some accepted reasons were adultery, abandonment, bigamy, alcohol or drug abuse, cruelty or abuse, criminal conviction, and mental illness. For many unhappy and feuding couples, the choice to commit perjury, collusion and fraud was the fastest and easiest way out of a marriage. It was left up to the family court system to determine which facts had been distorted and what lies were told. The no-fault laws were the resulting change to how divorce would be played out in court.

Some people believe the divorce revolution in the 1960s-70s contributed to the implementation of no-fault laws— a direct result of making it too easy to walk away from a marital contract. But if you consider this period, two decades of transformation all played an integral part in how the public viewed divorce. The sexual revolution changed everything, from morals to marriage to making the break. Then the revolution to raise feminine consciousness happened and everyone jockeyed for equal ground. Add to the mix the psychological revolution, fueled by prosperity after the war that focused on the non-material needs of men and women, this sort of New Age thinking shook things up for good.

We now consider personal fulfillment, even happiness, as something we expect, want, and need for living life. The old institutional idea of marriage as duty and sacrifice, gave way to a new model on how we should base a marriage … the soul-mate model. If we don’t get it right the first time, divorce gives us the opportunity to try again in order to find our soul-mate to share life with.

So do we turn back the clock, as some claim we should, and go back to the broken institution of finding fault to obtain divorce? Or would it merely facilitate zealous advocacy in family law, allowing our already crowded courts to become common battlefields for dueling attorneys, all on the clients’ time-clock? It happens too often now, even with our no-fault process. The history of ugly divorces is littered with the innocent and children are the hardest hit. Turning back the clock isn’t the answer— living in 2013 is a totally different world than living in 1953.

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Perhaps we are on the cusp of a new frontier, one of mediation and collaboration. Divorcing the best way isn’t easy, it’s hard work. Putting your children first means sacrifice and diligence. Becoming co-parents who can work together to build a happy and sustaining foundation for your children is for the long haul. It will be one of the most difficult yet rewarding things you will ever accomplish.

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