The Pros and Cons of No-Fault Divorce

The concept of no-fault divorce caught fire between 1970 and 2010, with all 50 states eventually passing legislation to approve it. California was the first state to get on board, with New York bringing up the rear. Some states have gone so far as to disallow any form of fault-based divorce at all, but the majority also recognize divorce based on marital misconduct. Spouses living in these areas have a choice to make when they file to end the marriage.

First, it's important to understand exactly what no-fault divorce is, and this varies somewhat from state to state as well. If you want a divorce, you must give the court a reason, called grounds. No-fault divorce grounds allow you to file for divorce without casting blame -- you don't have to tell the court that your spouse cheated, abandoned you or treated you cruelly. You can simply state in your complaint for divorce that the marriage isn't working out and you want to end it. In some states, this means citing "irreconcilable differences" as grounds. In others, you would claim an "irretrievable breakdown of the marriage." Some states require that you and your spouse separate for a period of time to qualify for a no-fault divorce.

There are several advantages to terminating a marriage this way. If you think there's any possibility that you and your spouse can reach a marital settlement agreement so the court doesn't have to decide things like property division and custody, filing on no-fault grounds can keep negotiations on an even keel. No one sits down at the bargaining table with a built-in grudge because the other has already accused him or her of doing something unforgiveable to end the marriage. If you have children together, they're generally much better off when your divorce is amicable. You can focus more on bringing them gently through the divorce transition than waging all-out war against your soon-to-be ex in a courtroom. If you reach a marital settlement agreement and submit it to the court to end your marriage, you can skip a trial, and this saves a good bit of time, money and stress.

If you file for divorce on fault grounds and your spouse denies the misconduct, you must generally prove at trial that he did what you're accusing him off. This effectively means airing your dirty laundry in public. Unless you just want the emotional satisfaction of broadcasting your spouse's wrongdoing loud and clear, there may not be much to gain from this.

Of course, if your spouse did cheat or did abuse you and if you can prove it, this may impact aspects of your divorce. In states that recognize fault-based divorce, you must file on fault grounds and cite his misconduct as the first stepping stone. If he had an affair and depleted marital assets in the course of pursuing his new significant other, you may have a right to half the value of that money or property, but you must prove the adultery if you're going to recoup what's rightfully yours in the divorce.

Opponents of no-fault divorce say that it makes ending a marriage too easy. In fact, the national divorce rate climbed over the years as more and more states approved no-fault divorce, giving spouses this option. But I've never seen the point in making people remain married when they clearly have no desire to do so, or make up grounds for divorce when neither of them did anything wrong. That said, if you stand to gain something financially by proving that your ex ended the marriage through misconduct, then by all means, bring out the boxing gloves. Otherwise, simply filing on no-fault grounds and negotiating a settlement might be the way to go. Talk to your lawyer to figure out which approach is right for you. If you have any questions concerning a divorce, phone the Law Offices of Peter Van Aulen at (201) 845-7400 for a free in office consultation.

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