Divorce Differences

Aug 8, 2012 by

California became the first state to adopt no-fault divorce law back in 1970 and in the years that followed every other state in the nation has adopted similar divorce laws. New York was the last state in the union to require at-fault divorce grounds until 2010 when the New York Senate and Assembly put no-fault divorce laws on the books in that state too. No-fault divorce laws that permitted one spouse to terminate a marriage without a specific fault being assigned to either party were adopted as a solution to expensive battles in court that often resulted when blame for the marital breakup was formally charged to one spouse or the other . No-fault divorce laws were thought to be progressive reform that would reduce the stress and conflicts of divorce that were harmful to both spouses and destructive to the emotional well-being of the extended family and any children involved too.

Since there is no assigned blame in a no-fault divorce either spouse can initiate the necessary paperwork to end the marriage. Since the adoption of no-fault divorce laws, statistics show that domestic violence has decreased in many states because there is less turmoil ending a marriage. At-fault divorce laws used to force divorcing couples into court battles that were needlessly complicated and costly and couples that were in basic agreement about their divorce were denied the ability to split based on the grounds of irreconcilable differences and were instead forced to choose a specific marital fault to assign to one spouse or the other. If the marriage lacked any real faults, the couples had to invent one just to complete their divorce. This meant one spouse had to prove to a court that the other spouse had done something wrong or had been at fault in some way. The usual grounds used in these cases were adultery, abuse, abandonment or impotence and at-fault divorces easily turned into blame games.

No-fault divorces do have their drawbacks, one being the inability to save a marriage after one spouse files for a no-fault action. Another is the fact that with no one to “blame” for the failure of the marriage, the court makes all of the final judgments on marital assets and custody issues instead of the parties involved. Then there are those who feel that no-fault divorce laws encourage marital breakups because they make getting a divorce too easy and provide no incentive to work on solving problems in a relationship. Despite their ease and general lower costs, some people choose not to opt for an at-fault divorce because many no-fault states require a waiting, or separation, period before the final decree is granted and people simply don’t want to wait that long. Of course, if one spouse has been truly at fault like engaging in adultery, the other spouse might want to present the misconduct in court in an effort to try and grab a bigger share of the marital assets or get a better child custody arrangement.

Two more categories of divorce in the United States today that can cause a bit of confusion are contested divorces and uncontested divorces. Contested divorces are not the same as at-fault divorces and uncontested divorces are not the same as no-fault divorces, although they share similarities that can make the differences hard to discern at times. A no-fault divorce action could be based on irreconcilable differences in the marriage and yet, the couple could still have a contested divorce in court because they do not agree on some other parameter of the separation agreement like disagreements over difficult issues like property division and child custody. The difference between the two types is usually measured in time and money, with contested divorces being the most difficult and expensive and when a couple cannot reach an agreement on key issues a contested divorce can easily become bitter and costly.

On the other hand, it is possible that a spouse could file an at-fault divorce action and if the other spouse accepts the marital fault and does not fight the action, the divorce would be considered un-contested. An uncontested divorce doesn’t mean it is going to be a friendly divorce, but it will allow more issues to be settled outside of the courtroom and will always be less costly than litigation. An uncontested divorce can also occur when one spouse cannot be located, fails to respond to the action or appear in court at all. Uncontested divorces will not work in cases where people are too angry to negotiate. Cases of abuse or violence are not good candidates for uncontested actions and divorces involving large amounts of property to be divided aren’t either.  These types of cases often present legal and financial complexities that are too difficult to navigate without the aid of professional counsel and are not good candidates for uncontested resolution.

An uncontested divorce might be the preferred method of ending a marriage, but factors like child custody, alimony and on-going support issues often make a court hearing unavoidable. If you are unsure about the differences between at-fault, no-fault, contested and un-contested divorces in your own specific case, it can be a good idea to consult a qualified divorce attorney to see what your best options might be before you initiate the process.


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