What is no fault divorce and how did it come to be?

A no-fault divorce is a dissolution of marriage where neither party has to prove to the court that either is at fault for the divorce. Depending on the state, you may only have to allege “irreconcilable differences.” This can be difficult for some to accept, as sometimes one spouse wants to place blame on the other for the dissolution of marriage. This “blame” may include claims such as adultery, breakdown of communication, finances, substance abuse, or other reasons for the dissolution of marriage.

However, in a no-fault divorce state, none of those reasons matter. The party not filing for divorce cannot object to the divorce. As long as some basic requirements such as residency and waiting periods are met, the dissolution of marriage will be granted.

Understanding the history of no-fault divorce in the United States

No-fault divorce began in California, the first state to enact a no-fault divorce system in 1969 when Ronald Reagan, the Governor at the time, signed the Family Law Act. The concept of a no-fault divorce system made it easier and simpler to obtain a divorce and, as a result, the 1970s brought about the highest divorce rate in US history. The reason for the change, according to advocates of a no-fault divorce system, was that divorce was private and the state had no legitimate interest to restrict when a marriage had broken down versus when it had not.

Now, all fifty states, with New York as the last to join in 2010, have some sort of no-fault divorce system. However, only seventeen states and Washington D.C. are “actual”, or what some refer to as “true,” no-fault states. These seventeen states include California, Colorado, Florida, Hawaii, Iowa, Kansas, Kentucky, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, Oregon, Washington, Wisconsin, and Indiana.

The ongoing movement to end no-fault divorce

The idea of a no-fault based divorce is still a point of contention among some. In New York, the National Organization for Women did not want to allow no-fault divorces, because the organization was concerned that a judge would award a divorce without considering the facts and circumstances that led to the divorce to begin with.

In Pennsylvania, for example, as recently as 2020, an individual petitioned the United States Supreme Court alleging that Pennsylvania’s no-fault based system was unconstitutional. Although the Supreme Court denied review, Ryan, the petitioner in the case, argued that the First Amendment to the United States Constitution only allows a state to regulate conduct, not viewpoint. Ryan believed that any no-fault based state allows the state to essentially sponsor a divorce.

Examples of no-fault divorce laws in your state

Some of the no-fault states require that each spouse live apart for a period of time before petitioning the court for a divorce. This is called a separation period. This means it is mandatory to live separately before filing for the divorce. Those states include, but are not limited to, Maryland, South Carolina, and Virginia.

A “waiting period,” on the other hand, is a different concept from the mandatory separation period described above. Some no-fault based states allow parties to proceed with getting a divorce if they have already lived apart for a period of time. This means the party does not have to file under no-fault grounds but can simply file under the ground that the parties have lived apart for a period of time. Those states include Connecticut, Hawaii, Washington D.C., Louisiana, Montana, Nevada, Washington, and Wisconsin. In those states, it is not mandatory to live apart first, but doing so is one way to start the divorce process. 

While you do not need to prove fault to file for the divorce, fault may still be an issue for the judge when deciding other issues such as custody and visitation. In states that recognize both fault and no-fault - meaning those that are not “true” no-fault divorce states - a spouse may still file for divorce based on fault grounds.

The specific code section for no-fault divorce can typically be found in the Family or Civil code for that state. For example, California’s can be found here: California Code, Family Code - FAM § 2310.

Do you need a no-fault divorce lawyer? What are your options?

You may think you do not need to contact a lawyer to proceed with your divorce if you live in one of the no-fault based states described above. However, if custody, visitation, alimony, property division are at issue, you should consider getting help whether you live in a no-fault based state or not. Building an understanding of residency and waiting period requirements are another key aspect to get right as you are getting started with your divorce.

Hiring a lawyer is not your only path to getting legal guidance for your situation. Several lawyers and law firms have worked with Gavel to produce “legal apps” that can help you with this process:

• For those in California, Colorado, New York, Texas, and Utah; we have an app that guides you through divorce end to end
• For others in the US, this app can get you started
• Lastly, we have an app for Canadians

If you find that these legal apps cannot serve your complicated needs, you may be best served by seeking out a lawyer’s direct advice.

References

[1] (Goldstein, On Abolition of Grounds for Divorce:  A Model Statute and Commentary, (1969) 3 Fam. L.Q. 75, 82-83.)