Many folks who are going through the divorce process, if you asked them about fault in their divorces, would rapidly tell you that their ex-partner was at fault for the marriage ending. Even if that is true in a specific case, the American system of divorce law often encourages exes to pursue a no-fault process. This may have you wondering what the difference between fault and no-fault is. You might also want to know which approach you should consider.
What is Fault?
An at-fault divorce is one where it is evident that one of the two partners has contributed significantly more to the breakdown of the marriage than the other. For legal purposes, these problems are ones we more generally think of as big trouble, such as adultery, physical or emotional abuse, abandonment, or drug and alcohol use disorders. The court can consider other conditions, too.
Why is There a No-Fault System?
In its original form, American divorce law was solely a fault-based system. This could lead to very unfortunate scenarios within the system, such as one Oregon case from the 1930s. A divorce was sought based on abuse, but the court found that both parties had been equally abusive. The husband had a violent temper, but the wife was known to throw things at him. Clear fault couldn't be assigned to a single party, and the couple was ordered to remain married.
Many cases emerged where parties falsified evidence and testimony to get out of marriages. By the 1960s, it was evident the system was broken. In 1969, California introduced the Family Law Act, legislation that added a concept called "irreconcilable differences" to the legal system. This allowed two partners to declare that they could no longer live with each other, even if clear legal fault couldn't be established. Other states quickly followed California's lead in the 1970s.
Choosing Between the Two
In the time since no-fault came into being, some states have gone to systems that are entirely no-fault. If you live in such a state, there is no choice to be made.
Those who live in fault states have to weigh pros and cons. An at-fault divorce may be beneficial if you can obtain more of the community estate, and it may also be a factor in child custody decisions. Otherwise, a divorce attorney will usually encourage you to go no-fault in order to save yourself expenses, time, and grief.
Share31 March 2019
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