Understanding the Difference – Fault and No-Fault Divorces

Aug 8, 2012 by

In 1953, the State of Oklahoma changed America’s divorce laws forever when it became the first state to pass a “no-fault” divorce law. Later, in the 1970s, California followed suit and enacted its own no-fault divorce law. Today, almost all states grant no-fault divorces.

Before no-fault divorces were permitted, one spouse had to prove to a court that the other spouse had done something wrong. He or she had been at fault in some way. The usual grounds were adultery, abuse, abandonment or impotence. Fault divorces quickly turned into “blame” games. Lawyers and judge were forced to listen to bickering couples distort facts and sometimes lie in order to be able to split up. The game of “he said, she said” became confusing.

There is no need for blame in a no-fault divorce. Either party can cite their desire to end the marriage and initiate the necessary paperwork. There are several good reasons to continue with no-fault divorce laws. Since the appearance of no-fault laws, statistics have shown domestic violence has decreased as parties have an easier time leaving the marriage. No-fault laws are less emotionally draining on the parties involved, especially children. Also, contested “fault” divorces usually involve attorneys’ fees and can get very costly quickly.

Despite their simplicity, some people choose not to use the no-fault laws and opt for a fault divorce instead. One of the main reasons cited is that many no-fault states require a waiting, or separation, period before the final decree is granted. Some people simply don’t want to wait that long. Another reason for choosing a fault divorce is that if one party has been truly at fault, such as engaging in adultery, the other party might want to use the “blame game” in court to obtain a greater share of the marital assets or a better custody deal by proving that the other party is at fault and must be made to pay.

Some people feel there are downsides to no-fault divorces. For example, when one spouse files for a no fault divorce, the other spouse no longer has the option of saving the marriage. With neither party to blame for the failure of the marriage, final judgments over marital assets and custody issues are often left to the family court judge instead of the parties involved. Many men feel the no-fault system favors women, since under no-fault it is more difficult to prove that a mother is unfit. A no-fault divorce can also be more difficult for a “stay-at-home” wife because without fault, a court frequently will not award spousal support. Since the mother usually retains custody of the children, that can often mean a lower income and higher expenses. Other people feel no-fault laws make getting a divorce too easy and leave no incentive to work on the problems in a relationship.

Both no-fault and fault divorces have their good and bad points. If a bickering couple can at least agree on which way they want to go, it is definately a step in the right direction.


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