In the “old days,” if a person wanted to file for divorce, he or she would have been required to present a reason the marriage should be dissolved. The reason would normally be something the other spouse had done to make the marriage unsustainable (e.g. infidelity, cruelty, etc.). If the court was convinced of the defending spouse’s guilt, it would agree to dissolve the marriage. However, if there was scant evidence of the alleged wrongdoing, the court would oftentimes refuse to grant the divorce.
As time went on, more and more states began to use a “no fault” protocol when deciding divorce cases. Couples were allowed to simply claim irreconcilable differences with no fault for the marriage’s failure placed on either party. This trend has continued, and today more states than ever follow this protocol by default.
In this article, we’ll present further details regarding the differences between a fault and no-fault divorce. Plus, because all states now recognize the latter, we’ll discuss its pros and cons.
What Is A “Fault” Divorce?
As described above, at least one party would ask for the marriage to be dissolved on the grounds of some type of fault. What constitutes acceptable grounds for a divorce varies by state, insofar as a state still recognizes fault as the basis of a divorce. It can include adultery, routine drunkenness, and cruel treatment, either physical or emotional. Other grounds include desertion, imprisonment, and an inability to engage in sexual intercourse.
Given that all states now recognize the validity of a no-fault divorce, why would a couple seek to request their marriage be dissolved on the basis of fault? One reason is because many states require divorcing couples to separate for several months before a no-fault divorce is granted. By assigning fault to one or both spouses, the marriage can be dissolved without meeting this requirement.
Another reason is that the person claiming fault against the other spouse may be able to secure a better settlement if the claim can be substantiated. This can result in more spousal support, a larger portion of the marital assets, or better custody rights of the couple’s children.
What Is A “No Fault” Divorce?
Couples who want to dissolve their marriage without placing blame on each other can do so by filing a “no fault” divorce. Technically, the couple must still give a reason for seeking a divorce. But one of the reasons accepted by nearly all states is “irreconcilable differences.” This implies that issues exist for which the differences in perspective between the parties is so great that they cannot be resolve.
When irreconcilable differences is given as the reason for the divorce, the divorcing couple is not required to provide additional details about any of the issues involved. Having said that, some of the issues may surface when child custody rights are discussed.
Pros And Cons Of A No-Fault Divorce
When fault is not an issue, both spouses benefit. Their divorce can usually be settled more quickly, which means both parties are free to resume their lives sooner. Additionally, a no-fault divorce is often handled with less emotion. This eases the burden placed on both spouses as well as the strain placed on their children.
Another benefit is that an abused spouse can leave the marriage far more easily than would be the case if fault had to be claimed and proven. With no such requirement, the abused party can end the marriage at his or her discretion.
One of the downsides to a no-fault system is that many couples include one party who does not want to get divorced. That individual has no control over the dissolution of the marriage. In other words, he or she is unable to stop the divorce if the other spouse proceeds with it.
Another drawback is that one of the spouses may lose control of his or her children. This tends to be a greater risk for fathers than mothers since family courts tend to favor the latter when addressing custody rights. To that end, a mother might decide to end the marriage, after which the family court awards custody of the couple’s children to her. A no-fault system makes it very difficult for the father to argue that the mother is poorly-suited to care for them.
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In summary, no-fault divorce is recognized in every state, though many states still recognize a fault divorce. While most divorcing couples prefer the former route, it does entail both pros and cons. It is highly advisable to speak with an experienced divorce attorney who can help you to determine which approach is the most beneficial given your circumstances.