My spouse and I have no children together and own no property together. Should I file for a no-fault divorce or for an uncontested divorce?
It’s not a question of choosing between “no-fault divorce” and “uncontested divorce”. These two terms are not opposites.
No-fault divorce means that you don’t have to accuse your spouse of committing some kind of marital fault before you can seek a divorce from your spouse. The reason no-fault divorce is called no-fault divorce is because prior to the creation of no-fault divorce laws, you could not get divorced unless you are able to prove your spouse committed some kind of marital fault during the marriage. And what does “marital fault” mean? Marital fault includes things like adultery, desertion and abandonment, physical abuse, extreme mental and emotional cruelty, habitual drunkenness or impairment from the abuse of other substances, conviction of a serious crime or incarceration, failure to provide one spouse with the necessities of life, and insanity.
Back in the late 60s, various governments in the United States realized that there are many miserable marriages that could and should end in divorce but that did not qualify under any of the fault bases for divorce. That is what led to the creation of no-fault divorce, by which one can obtain a divorce simply by asserting that there are irreconcilable differences between spouses that render the marriage irretrievably broken prevent the marriage from continuing.
An uncontested divorce is a divorce in which all of the issues in in the divorce action, including child custody and visitation (parent time), division of marital assets and responsibility for marital debts, etc. are resolved by the agreement of the parties through settlement as opposed to litigating those issues and having the matter decided by a judge after a trial.
So if you and your spouse both agree that you don’t want to stay married and believe that you can agree to resolve all of the issues in your divorce without needing to fight with each other and litigate at trial, you can drop a settlement agreement and base your divorce upon the terms of your settlement agreement, without having to go to trial and have the judge determine the outcome.
No-fault divorces can be uncontested divorces. That stated, not all no-fault divorces are uncontested, as one can file for divorce on a no-fault basis, but may still find himself or herself arguing with his or her spouse over various issues that will end up decided by a judge, if the parties cannot settle those issues by agreement between themselves.
Utah Family Law, LC | divorceutah.com | 801-466-9277
In the age of no-fault divorce, you don’t really need to persuade the court to grant you a divorce. Divorce is essentially available on demand. Your spouse’s IQ need not have anything to do with it.
Some people think “no-fault divorce” means that “you can’t divorce me if I’m not at fault.” Not true.
No-fault divorce means that if you want to get a divorce, you don’t have to prove, as the reason for seeking a divorce, that your spouse has committed some kind of fault entitling you to a divorce. All you have to do is claim that there are “irreconcilable differences” between you and your spouse that have caused an irreparable breakdown in the marriage.
Before no-fault divorce was made the law in every state in the United States of America, one could not obtain a divorce unless his/her spouse had committed a “marital fault”. What constitutes marital fault? Each state has its own list, but generally speaking, marital fault includes:
adultery
impotency of the respondent at the time of marriage
cruelty
abandonment, desertion, neglect (failure of the spouse to provide necessary financial/temporal support)
insanity or severe mental illness
certain criminal convictions (usually a felony or those resulting in long-term imprisonment)
alcohol and drug abuse
contracting a “loathsome disease” (i.e., a sexually transmitted disease)
With no-fault divorce the law now, fault on the part of your need not exist to qualify you to file for divorce
Utah Family Law, LC | divorceutah.com | 801-466-9277
You don’t have to come up with creative reasons for getting a divorce anymore in the age of no-fault divorce (in the U.S.A.).
You don’t have to find a reason to blame your spouse for seeking a divorce from your spouse. No-fault divorce literally means “no fault” need be shown as grounds for divorce.
With these facts in mind, you almost don’t need to come up with an excuse a “good reason” to obtain a divorce anymore. I say “almost” because while it is true that you do not have to ascribe fault to your spouse as grounds for divorce, you usually have to give a legally recognized reason for the divorce, and in the jurisdiction where I practice divorce law (Utah), the no-fault basis that I’ve yet to have a court question or reject is “irreconcilable differences of the marriage”. Technically, a court could challenge one’s claims of irreconcilable differences and, if it determines that there are not, in fact, irreconcilable differences between the spouses, the court could deny the request for a decree of divorce and dismissed the divorce action, but I’ve never seen that happen in the 25 years I’ve been practicing law to date, and I doubt I ever will.
Many would question the wisdom of no-fault divorce laws and their unintended consequences, but that doesn’t change the fact that no-fault divorce exists and exists in every state in the United States of America.
So if you want a divorce, but you don’t have the typical fault-based grounds available to you, it doesn’t matter anymore.
Now, to answer your specific question: if you sought a divorce purely on the grounds that your spouse lived with her parents during pregnancy, that would probably fail as grounds for divorce. However, if you were to allege that her separation from you for the duration of her pregnancy has caused irreconcilable differences, and you could prove that the marriage is irretrievably broken as a result, you’d win. You’d get a divorce. You might look like a heel for divorcing on those grounds, especially if your wife had good reason to need to spend most or all of her pregnancy in the presence and care of her parents (such as a high-risk pregnancy where she would need someone constantly with her in the event of an emergency or a sudden need to visit the hospital or doctor), but if you just couldn’t stand the fact that your wife stays with her parents during pregnancy and that cause you to give up on the marriage, the court would probably give you a divorce on the grounds of irreconcilable differences.
Utah Family Law, LC | divorceutah.com | 801-466-9277
What are the most important changes to the family law in the 19th century and 20th century up to today, and why?
In my opinion (and in no particular order):
No-fault divorce
Abolition of the doctrine of coverture (femme couvert)
Tender Years doctrine (and the abrogation of the Tender Years doctrine)
Statutory child support
Same sex marriage
We need to get one misconception out of the way immediately, and that is that wives were treated as the husband’s property in the past. They were not.
This does not mean that women were treated differently than men and husbands under the law, but women were not treated as their husbands’ property and unmarried women could own property and enter into contracts. See Husband and Wife Are One–Him: Bennis v. Michigan as the Resurrection of Coverture (4 MIJGL 129, Amy D. Ronner Michigan Journal of Gender & Law)
At common law, an adult single woman could own, manage and transfer property. She could sue and be sued. She could likewise earn money and enjoy it as her own. Once that same woman married, however, her status changed radically; coverture subsumed her legal identity into her husband’s.
Blackstone described coverture status as follows:
By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of husband: under whose wing, protection, and cover, she performs everything; and is therefore called in our law-French a feme covert, foemina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of an [sic] union of person in husband and wife, depend almost all the legal rights, duties and disabilities, that either of them acquire by the marriage. The coverture doctrine prevented a man from granting anything to his wife or from entering into a contract with her. Such actions would be futile because they would “suppose her separate existence . . . and to covenant with her, would be only to covenant with himself.”
The coverture merger was not mere metaphysics, but imposed real disabilities on the married woman. For example, a wife relinquished the control of her real property to her “baron” and although he could not alienate the rents and profits, he was not obligated to account for them to her. Moreover, her husband enjoyed complete control of his wife’s interests, which meant that he could alienate them and unilaterally pocket the proceeds. All chattels that a woman owned at the time of marriage and those she acquired thereafter belonged to her husband. The suspension of a wife’s legal identity also meant that she could not sue or be sued at law unless her husband had joined in the action or “ha[d] abjured the realm, or is banished.”
Coverture prohibited husband and wife from testifying for or against each other in trials “principally because of the union of person.” That is, such testimony would be irrebuttably presumptively self-serving or self-incriminating. In criminal law, a husband and wife could not comprise a conspiracy because one person could not conspire with himself. They also could not steal from one another because the property belonged essentially to only one–him. In other situations the wife was utterly divested of free will and viewed as “inferior to him, and acting by his compulsion.” For example, because certain criminal acts on her part, short of treason or murder, were viewed as if done under his “command,” coverture bestowed upon the married woman a specie of immunity.
Utah Family Law, LC | divorceutah.com | 801-466-9277
In the age of no-fault divorce, you don’t really need to have a good reason (or any reason at all) to get a divorce. So if your spouse is hiding money from you and you want to divorce your spouse because of it, you can seek a divorce on the grounds of irreconcilable differences. If you don’t like the way your spouse choose his or her food, you can divorce your spouse and claim irreconcilable differences. Get the picture? No-fault divorce has become essentially divorce on demand.
Utah Family Law, LC | divorceutah.com | 801-466-9277
I know of no legal way to force your spouse to filed for divorce against you, but you may not be aware of the fact that your spouse cannot prevent you from divorcing him/her.
Many people do not understand what no-fault divorce means. Some people mistakenly believe that no-fault divorce means, “My spouse cannot divorce me unless I am somehow at fault.” This is not true.
No fault divorce means that one can divorce his/her spouse regardless of whether his/her spouse has committed any marital fault.
What is marital fault, you may ask? each jurisdiction is a little different than another, but here is a basic list of what constitutes marital fault:
Adultery
Abandonment or desertion
Bigamy
Criminal conviction
Cruelty
Criminal conviction and/or imprisonment
Culture, religion, and disease
Financial backing
Force or fraud in obtaining the marriage
Impotence at time of marriage
Insanity/Mental illness/Mental incapacity
Marriage between close relatives
Mental or physical abuse
Willful neglect of spouse
Refusing to engage in sexual intercourse with spouse
Religious differences
Sexual orientation
Separation for an extended period of time
Substance abuse
Just because no-fault divorce exists does not mean you cannot still file for divorce on a marital fault-based ground or several fault-based grounds.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Do courts make awards in divorce to “punish” adultery? Great question.
Adultery is considered a fault-based ground for divorce and a factor that can be considered when the trial court decides matters of alimony, property division, and child custody.
I will answer this question according to what Utah statutory and case law provides.
Utah Code § 30-3-5(9)(b) provides, “The court may consider the fault of the parties in determining whether to award alimony and the terms of the alimony.”
Utah Code § 30-3-5(9)(c) states that “‘Fault’ includes engaging in sexual relations with an individual other than the party’s spouse, if such wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship.
Most recently, the Utah Supreme Court discussed this very question in the divorce case of Gardner v. Gardner (Volume 425 Pacific Reporter 3rd, page 1134, decided in 2019. In that decision the Supreme Court stated:
[C]ourts should keep in mind that the ultimate purpose of any property division or alimony award is to “achieve a fair, just, and equitable result between the parties.” For this reason, courts should consider fault only in an attempt to balance the equities between the parties. In other words, where one party’s fault has harmed the other party, the court may attempt to re-balance the equities by adjusting the alimony award in favor of the party who was harmed by that fault.[footnote 56]
Footnote 56 states:
We note that some Utah courts have struggled to articulate an appropriate role of fault in alimony determinations in light of our case law suggesting that the purpose of alimony is not to punish. See Mark v. Mark, 2009 UT App 374, ¶ 17, 223 P.3d 476 (“[I]f a trial court uses its broad statutory discretion to consider fault in fashioning an alimony award and then, taking that fault into consideration, adjusts the alimony award upward or downward, it simply cannot be said that fault was not used to punish or reward either spouse by altering the award as a consequence of fault.”). But other Utah courts have concluded that fault may be considered without constituting punishment if it is used only to rectify the inequity caused by the fault. See Christiansen v. Christiansen, 2003 UT App 348, 2003 WL 22361312 at *2 (“Fault may correctly be considered by the trial court without penalizing the party found to be at fault.”); see also [Wilson v. Wilson, 5 Utah 2d 79, 296 P.2d 977, 979 (1956)], 296 P.2d at 980 (explaining that equitable factors often cause courts to impose permanent alimony on “erring” spouses); [Riley v. Riley, 138 P.3d 84 (Utah Ct. App. 2006)], 2006 UT App 214, ¶ 24, 138 P.3d 84 (affirming the district court’s consideration of a husband’s fault as an important “factor in fairness to [Wife]” (alteration in original)). As this latter line of cases suggests, fault may be considered as long as it is used as a basis to prevent or rectify an inequity to the not-at-fault spouse. So in reviewing an alimony determination involving fault, Utah appellate courts should focus on whether a fault-based modification of an alimony award helped “achieve a fair, just, and equitable result between the parties” rather than on whether it was punitive in nature. [Dahl v. Dahl, 2015 UT 79, ¶ 168, ––– P.3d ––––], 2015 UT 79, ¶ 25, ––– P.3d –––– (citation omitted) (internal quotation marks omitted).
With this in mind, could a court (a court, not all courts) award more alimony, divide marital property unevenly, or restrict custody or parent-time due to one of the spouse’s adultery to punish adultery? Yes, of course, even if the court went to great pains (sincerely or not) to articulate the alimony decision as not being punitive in nature.
Some judges (some, not all) allow their personal antipathy for an adulterous spouse their impartiality and justify disregarding the law in favor of doing what the judge “feels is right” instead. And yes, it can happen to you.
Bottom line: If you are in adulterer, and a serial and/or un repentant adulterer at that, it should come as no surprise to you that your adultery will do you no favors when it comes to the way the court can and may treat you in a divorce action. Fair or not, that is the nature of the way many people (and judges are people) view and treat adulterers. Does this mean that if you are in adulterer you should expect to be treated unfairly by a court? I think your odds are about 50-50, in my professional opinion. Do those odds mean that you should lie about adultery, if you believe you can get away with it? No, and for two reasons: 1) it is wrong to lie; and 2) if you commit adultery, then compound the problem by lying about it and get caught, you only increase your odds of being mistreated by the court. And odds are that if you lie about adultery you will be caught.
Utah Family Law, LC | divorceutah.com | 801-466-9277
First, you need to understand that Utah, like every other state in the U.S. has what are known as a “no-fault divorce law”. No-fault divorce means that you don’t have to plead or show that your spouse committed any kind of marital “fault” to obtain a divorce. Previous to the creation of no-fault divorce laws, you could not get a divorce unless you could prove your spouse had committed one or more of the recognized faults constituting grounds for divorce.
Utah’s no-fault ground for divorce is the “irreconcilable differences of the marriage” basis (Utah Code § 30-3-1(h)). If you assert irreconcilable differences as your ground for divorce, you do not have to prove any kind of fault to obtain a divorce on that ground. Because it doesn’t matter whether your spouse wants a divorce too– you can prove that there are irreconcilable differences of the marriage by simply saying that you subjectively feel that there are irreconcilable differences. Sometimes a court might ask you to explain in more detail what the irreconcilable differences in your marriage are, but courts will accept something as simple and ambiguous statements like “we are not compatible anymore” or “our differences prevent the marriage from continuing” or “our differences have rendered the marriage unsalvageable”.
Fault-based grounds for divorce still exist, which means that one can still assert one or more of these faults as grounds for divorce, but it’s not necessary to assert fault-based grounds to obtain a divorce.
I have provided for you below Section 30-3-1 of the Utah Code, which articulates both the no-fault ground and all the other legally recognized grounds for divorce in Utah.
(1) Proceedings in divorce are commenced and conducted as provided by law for proceedings in civil causes, except as provided in this chapter.
(2) The court may decree a dissolution of the marriage contract between the petitioner and respondent on the grounds specified in Subsection (3) in all cases where the petitioner or respondent has been an actual and bona fide resident of this state and of the county where the action is brought, or if members of the armed forces of the United States who are not legal residents of this state, where the petitioner has been stationed in this state under military orders, for three months next prior to the commencement of the action.
(3) Grounds for divorce:
(a) impotency of the respondent at the time of marriage;
(b) adultery committed by the respondent subsequent to marriage;
(c) willful desertion of the petitioner by the respondent for more than one year;
(d) willful neglect of the respondent to provide for the petitioner the common necessaries of life;
(e) habitual drunkenness of the respondent;
(f) conviction of the respondent for a felony;
(g) cruel treatment of the petitioner by the respondent to the extent of causing bodily injury or great mental distress to the petitioner;
(h) irreconcilable differences of the marriage;
(i) incurable insanity; or
(j) when the husband and wife have lived separately under a decree of separate maintenance of any state for three consecutive years without cohabitation.
Utah Family Law, LC | divorceutah.com | 801-466-9277
How can a uncontested divorce be considered a law suit? Does the court even get involved in that case?
A law suit is a claim or dispute brought to a court of law for adjudication. A divorce action is a kind of law suit.
All divorce cases, whether contested or uncontested, are law suits, although all law suits are clearly not divorce cases.
First, understand the definition of law suit, which is “a claim or dispute brought to a court of law for adjudication.”
Second, a divorce cannot be obtained except through a court, and to obtain a divorce from the court you must file a lawsuit in the form of a petition or complaint (depending upon the name your jurisdiction gives it) for divorce.
So even an uncontested divorce—where the parties do not litigate (“quarrel” “argue”) in court and instead sign a settlement agreement and file that agreement with the court to show the court that they want a divorce but don’t want or need to fight over any of the issues that could have been disputed—must be initiated by at least one of the two spouses filing a petition or complaint for divorce, so that the court can exercise jurisdiction (the power to make legal decisions and judgments) over you and your marriage to grant a divorce.
Not really, at least not in the jurisdiction where I practice divorce law (Utah).
Even if you get a “no fault” divorce (“no fault divorce” means that you don’t have to accuse your spouse of being the cause of the marriage, i.e., of being “at fault” as the reason you are seeking a divorce), technically the law still requires that there be (and that you allege in your complaint for divorce) irreconcilable differences between you and your spouse that cause continuing the marriage to be impossible.
The reality is that because it is impossible for the court to know whether there really exist irreconcilable differences between you and your spouse, you could be perfectly happy in your marriage, file for a no-fault divorce, and obtain a divorce without the court being any the wiser and without so much as batting an eye.
How do you divorce when your doesn’t want to go through with it? Does it require both parties to cooperate?
I cannot speak for all jurisdictions, but here is the answer for Utah, the jurisdiction where I practice divorce and family law (though my best guess is that this applies to all jurisdictions):
Can you divorce your spouse if he/she doesn’t want a divorce? Yes, no question about it. You have an absolute right to a divorce, if you want a divorce. This is what a “no-fault divorce” is. Many people believe that “no-fault divorce” means many things it does not.
Some believe “no fault divorce” means “hey, spouse, you can’t divorce me because I’ve done nothing wrong, I’ve committed no fault.” No, that’s not what it means.
Some believe “no fault divorce” means “hey, spouse, I can divorce you because I’ve done nothing wrong, I’ve committed no fault.” That’s not what it means either.
No-fault divorce means this: you can get a divorce regardless of whether your spouse has committed any marital fault. What does this mean, and what is “marital fault”?
It means:
that before the no-fault divorce law was passed by the legislature the only way one could obtain a decree of divorce was by proving his/her spouse was “at fault”. If your spouse had not committed a marital fault, then you couldn’t get a divorce no matter how much you wanted a divorce. Marital fault-based grounds for divorce still exist in some states*, they are just not the only way one can qualify to get a divorce.
that with the passing of a no-fault divorce law, now one can obtain a divorce on the grounds of “irreconcilable differences,” which means that as long as you claim (claim, not prove—after all, how could it be proven or disproven?) that there are “irreconcilable differences” between you and your spouse that render the marriage irretrievably broken, you can get a divorce.
Marital fault is any of the following grounds for divorce at common law. I will list the grounds that Utah recognizes first, plus some other grounds that other jurisdictions recognize as “fault”-based grounds for divorce:
Utah:
impotency of the respondent at the time of marriage;
adultery committed by the respondent subsequent to marriage;
willful desertion of the petitioner by the respondent for more than one year;
willful neglect of the respondent to provide for the petitioner the common necessaries of life;
habitual drunkenness of the respondent;
conviction of the respondent for a felony;
cruel treatment of the petitioner by the respondent to the extent of causing bodily injury or great mental distress to the petitioner;
incurable insanity; or
when the husband and wife have lived separately under a decree of separate maintenance of any state for three consecutive years without cohabitation.
Other fault-based grounds
abandonment for a certain length of time;
bigamy;
conviction of felony;
criminal conviction of a felony or imprisonment of one party for a certain length of time;
habitual intemperance or alcoholism that makes you unable to attend to business or inflicts mental anguish on the non-alcoholic spouse;
homosexuality (for heterosexual married couples) of the other party that was not discussed before the union;
incest;
infertility;
mental instability of one of the parties;
permanently insanity of spouse (this can be demonstrated by regular confinement within a psychiatric facility in any state or country for at least three years before filing for divorce);
separation for a certain minimal period of time;
transmission of a sexually transmitted disease by one spouse to the innocent spouse;
where a spouse’s joining of a religious sect leads to the destruction of the marriage, then the objecting partner can cite the episode as grounds for divorce;
willful desertion;
willful neglect of the husband not providing his wife the common needs like foods and shelter;
your spouse is physically unable to have sexual intercourse;
your spouse’s institutionalization for mental illness