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
Short of holding the proverbial gun to his head (i.e., forcing him to do so against his will), you can’t.
While you might contrive to motivate your husband to file for divorce against you by committing marital fault yourself, that might cause the court to disfavor you when making the rulings and judgments in the divorce, so you don’t want to go that route.
If you want your husband to be the one to file for divorce so that you can claim aggrieved/martyr status, you may have to wait a long time, if he ever does in fact file for divorce.
The good news is that if you want a divorce in the United States you do not have to wait for your husband to file for divorce to obtain a divorce. You can file for divorce yourself, and you can do so without having to blame him for anything (this is what a “no-fault divorce is; obtaining a divorce without having to allege you or your husband is at fault).
If you are afraid that you won’t be awarded alimony or child custody or some other thing or benefit in the divorce action if you file for divorce, that’s likely not the case (I can’t speak for divorce law in all jurisdictions, but I am not aware of any U.S. jurisdiction that “punishes” a spouse merely for being the one to file for divorce).
Besides, if your husband is abusing you—AND YOU CAN PROVE THAT (as opposed to merely asserting it in a “your word against mine” situation)—then you’re not only well within your rights to be the one to file for divorce, you are clearly justified in filing for divorce. No decent court is going to fault you for filing for divorce to escape abuse.
Go meet with an attorney. Find out more about how the law governing divorce works in your jurisdiction. Determine what your options are, balance the risks against the benefits. Learn what you can and should do to prepare for divorce as fairly and successfully as possible.
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
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
When did you know that divorce was the option you were going to choose?
First, make sure that if you reach the conclusion that you need a divorce that you really do need a divorce. Clearly, a marriage that, through no fault of your own, threatens your life, health, or safety is a marriage you don’t have wonder is worth staying in another moment. But in every other situation, divorce is not a decision to take lightly.
Some people think they need a divorce when they do not. They mistakenly believe that a divorce will be the solution to problems that the marriage is not causing or a solution to problems the marriage is causing when there are better solutions than divorce (many people have told me after their divorce that they wish they had not taken such drastic measures and had tried harder to save their marriage because they realized that 1) the marriage was worth saving and they didn’t “know what they got till It’s gone” and/or 2) divorce only made matters worse).
Even if you do not believe that individual counseling or therapy and/or marriage and family therapy will work for you and your spouse (or your whole family, if that’s a concern), you do not want to live with the regrets that come from wondering “what might have been”. Start reading the scriptures and going to church. Seek wisdom, guidance, and help beyond your own abilities (even if you think it’s a stupid idea, try it before you reject it out of hand). Before taking the drastic, painful, scarring, costly, and permanent step of divorce, try to find out whether the problem(s) in your marriage and family lie(s) with something than your spouse. Try to find out if the problem(s) can and should be solved without divorce. If, after taking these steps, you honestly conclude that your marriage cannot be salvaged, that is when you can and should file for divorce confident in your choice.
I’ll answer as if this question were asked in the belief that the affair will have a profound effect upon child custody, child support, and/or alimony.
If you’ve had an extramarital affair, it generally won’t do your divorce case any favors, won’t win you any sympathizers.
But will it generally result in you being “punished” by the divorce court? The answer to that question is, in my experience as a divorce lawyer: probably not (unless your affair could be shown to have done your spouse and kids egregious financial, physical, or emotional harm) and/or you were a serial, unrepentant adulterer/adulteress).
Child custody: in the jurisdiction where I practice divorce law (Utah), it has been my experience that extramarital affairs are rarely seen as rendering a parent “unfit” to exercise sole or joint custody of his/her children.
While the court is required to consider “the past conduct and demonstrated moral character of the parent” (Utah Code § 30-3-10(2)(d)) in making its child custody evaluation and award, usually the court will reason that an adulterous parent is not inherently any worse as a parent than one who is not.
If the affair cause the parent to spend excessive time away from the children, caused the parent to neglect the children, or if the children’s knowledge of the affair caused the children serious psychological or emotional harm and/or the children distrust or hate a parent because of the affair, then it’s not really the affair that is the problem itself, but the effects of the extramarital affair.
Child support: I have never seen an extramarital affair cited as a reason for awarding more or less child support had the child support payor not committed adultery.
Alimony: in Utah (where I practice divorce law), adultery can affect the alimony award, but will not automatically have an effect on the alimony award. Here is what the Utah Code contains:
(b) The court may consider the fault of the parties in determining whether to award alimony and the terms of the alimony.
(c) “Fault” means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship:
(i) engaging in sexual relations with an individual other than the party’s spouse[.]
(See Utah Code § 30-3-5(9)(c))
What does this mean? The Utah Supreme Court construed that section of the Utah Code in the case of Gardner v. Gardner (2019 UT 61, 452 P.3d 1134 (Supreme Court of Utah 2019)):
¶ 26 As with harm in a negligence case, a “great number of events” may have contributed to a divorce. In fact, we have previously recognized “that it is seldom, perhaps never, that there is any wholly guilty or wholly innocent party to a divorce action.” So in almost all divorce cases, it could be argued that each spouse contributed in some way to the breakup of the marriage. But some causes are clearly more substantial, or significant, than others. So even though it may be impossible to state with certainty a sole, or even the first, cause leading to the breakup of the marriage, it will certainly be possible in many cases for a court to determine the significant or important causes of the divorce.
¶ 27 Accordingly, we conclude that “substantially contributed” to the breakup of the marriage is conduct that was a significant or an important cause of the divorce. Under this definition, conduct need not be the sole, or even the most important, cause for it to substantially contribute to a divorce. So when an important or significant cause falls into a category of conduct specifically identified in section 30-3-5(8), courts are authorized to consider it in an alimony determination, even if the at-fault party can point to other potential causes of the divorce.
*****
¶ 53 Section 30-3-5(8)(a) requires district courts to consider the financial situations of both spouses as part of its alimony determination. Additionally, section 30-3-5(8)(e) urges district courts to “look to the standard of living, existing at the time of separation, in determining alimony in accordance with Subsection (8)(a),” and section 30-3-5(8)(f) provides that the “court may … attempt to equalize the parties’ respective standards of living.” Together these provisions codify the default rules that an alimony award should be crafted to “provide support for the [receiving spouse] as nearly as possible at the standard of living [he or] she enjoyed during marriage,” and, “to the extent possible,” to “equalize the parties’ respective standards of living.”
¶ 54 As we have explained, these default rules tend to further the court’s aim of achieving “a fair, just, and equitable result between the parties” because they typically put the parties in the best possible position to “reconstruct their [separate] lives on a happy and useful basis.” So the economic factors, and the general aim of placing the parties in the same position they enjoyed during the marriage, stand as an important starting point in any alimony determination.
¶ 55 But section 30-3-5(8) also provides courts the flexibility and discretion to depart from these default rules in certain situations where fairness demands. For example, in addition to the economic factors listed in section 30-3-5(8)(a), section 30-3-5(8)(b) also authorizes courts to consider “the fault of the parties in determining whether to award alimony and the terms of the alimony.” So the statute expressly provides district courts with the discretion to consider fault in determining whether to award alimony, as well as in determining the terms—the amount and length—of the alimony award.
¶ 56 Section 30–3–5 also provides guidance for how a court may adjust the amount and length of an alimony award in the event the court determines that one spouse’s fault necessitates a departure from the default economic alimony factors. For example, although section 30-3-5(8)(e) urges district courts as “a general rule,” to “look to the standard of living, existing at the time of separation,” it also instructs courts to “consider all relevant facts and equitable principles,” and grants courts “discretion” to “base alimony on the standard of living that existed at the time of trial.” When section 30-3-5(8)(e) is read together with section 30-3-5(8)(b)’s fault provision, it is clear that where a court determines that one spouse’s fault would make it inequitable to maintain both parties at the standard of living enjoyed during the marriage, the court has the discretion to lower the award to an amount sufficient to sustain the at-fault spouse at a reasonable standard of living post-marriage, rather than the standard of living the couple enjoyed during the marriage.
¶ 57 Similarly, section 30-3-5(8)(f) authorizes courts to depart from default alimony awards where fault contributed to the break-up of the marriage. It instructs courts to “attempt to equalize the parties’ respective standards of living.” But it also notes that courts should do so only “under appropriate circumstances.” So once again, when this provision is read together with section 30-3-5(8)(b)’s fault provision, it is clear that courts need not attempt to equalize the parties’ respective standards of living where one spouse’s fault would make equalization inappropriate.
¶ 58 Therefore, under the plain language of section 30-3-5(8), courts have discretion to depart from the default economic rules where one party’s fault makes it appropriate to do so. Because the district court determined that Ms. Gardner’s conduct qualified as fault under the statute, the court was authorized to depart from the default alimony rules by reducing Ms. Gardner’s alimony award by some amount.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Why do kids think it’s their fault when their parents divorce?
Among the things little children believe is that the world reacts to them, exists and functions because of them. Consequently, when things go wrong in their lives it is common for young children to wonder whether or believe that their parents divorced because of something about or because of something the child did or failed to do.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Life is full of transitions. We all remember moving out of our childhood home. For many of us, it was both a thrilling and absolutely terrifying experience. But possibly, one of the most fulfilling feelings is turning a house into a home—and a family home becomes the hot spot where so many memories are made. So how do you cope when your once happy home is filled with heartbreak? Over 90 percent of people in Western cultures will get married by the time they turn 50, according to the American Psychological Association (APA), but almost half of these marriages will end in divorce. We asked 501 people in the U.S., from ages 22 to 77, how they dealt with their divorce, who kept the marital home, and how they transitioned into a new chapter of life. Keep reading to see how divorced respondents are attempting to pick up the pieces and create happy, healthy homes.
To sell or stay
According to our survey, the decision to sell or stay in the marital home was influenced by a feeling of responsibility for the divorce. Almost half of those who felt their ex-partner was mainly at fault for their divorce ended up staying in the family home. Whereas, selling the home was the ideal outcome for people who blamed themselves for the divorce. When putting the home on the market, couples who considered their divorce to be civil were more likely to make a profit on the sale of their home. Thirty-three percent made a profit compared to the 24 percent who said their divorce was less than amicable.
Choosing a new home
After moving out of the family home, the majority of people decided to downsize when finding a new place. Fifty-three percent went with a smaller place, while 29 percent chose a house about the same size as before, and only 18 percent moved somewhere larger. Sixty-six percent of those who downsized after their divorce said a contributing cause of their breakup was infidelity. Other popular reasons for downsizing included a lack of individual identity (57 percent), a lack of intimacy (56 percent), and falling out of love (55 percent).
Moving away or staying local
When faced with a fresh start post-divorce, more people decided to stay in the same city instead of moving away. Twenty-seven percent said they remained in the same city because they had well-established roots. Others said they didn’t want to move too far away because they wanted to stay near their job (23 percent), family (19 percent), or kids (18 percent). Of the 20 percent who moved to a different city or state after a divorce, 30 percent wanted to be near their family. According to the Mayo Clinic, having a strong social support network of friends, family, and peers can be a crucial part of one’s emotional and individual health during periods of high stress or emotional angst.
Family-minded
Sometimes, couples postponed splitting up, especially when kids were involved. Sixty-four percent of divorced parents said they stayed married longer than they wanted to because of their children. The greatest number of parents (42 percent) said they remained in the relationship an extra one to three years. Twelve percent of divorced parents said they even stayed together for more than 10 years longer before filing for divorce. Only 12 percent of parents divorced rather quickly, staying married less than a year longer. The welfare of children may drive couples to stay together, but sometimes it can be harder on the child.
What parents would change if they could
Most children adjust well to their parents’ divorce within the first two years. Our survey participants concurred, with a majority of parents (75 percent) reporting their children handled the divorce fairly well. Of those parents, 37 percent said they felt they did a good job keeping conflict away from their kids, and 33 percent said they talked to them about their feelings more often during the split. Twenty-five percent of parents said their children did not handle the divorce well, and 44 percent of these parents said they wished they had done a better job at keeping the conflict with their spouse away from their kids. Forty-two percent of these parents said they wished they had talked to their kids about their feelings more often. According to the American Academy of Child and Adolescent Psychiatry, it is easy for a child to become confused, take the blame, or misinterpret the divorce unless his or her parents say what is happening. Being as straightforward as possible with your children, as well as having frequent discussions with them about their feelings can make a difference in the time it takes for them to transition and adapt to such a change. Thirty-six percent of parents of children who handled the divorce well said they wouldn’t change anything about how they personally handled the split, compared to only 14 percent of parents who said their children did not handle it well.
Deciding to divorce
In a study aimed to identify the underlying causes of divorce in the U.S., 75 percent of individuals listed a lack of commitment as the reason for their breakup, according to an article published by the National Center for Biotechnology Information. According to the article, commitment and communication overlap and often go hand in hand within a marriage. Similarly, our survey showed thatalack of communication was the top culprit of divorce, with 61 percent of men and 53 percent of women citing this as the reason for their breakup. Constant arguing and being cheated on were two other top reasons, whereas cheating on a spouse and a lack of individual identity were two of the least cited reasons for getting a divorce. A lack of intimacy and money were much bigger deals to men, whereas women cited a cheating spouse and differing values much more frequently than men.
Who’s at fault?
What do your generation and gender say about your divorce? According to our survey participants, baby boomers and Gen Xers were more likely to blame their partner for the divorce, with Gen Xers being the least likely (8 percent) to shoulder any of the blame. Millennials appeared much more unbiased when it came to blaming themselves for their divorce, however. According to the World Economic Forum, millennials have less than a 50 percent chance of divorce. Unlike baby boomers who often married at younger ages, millennials (and some Gen Xers) are waiting to marry once they have completed their education and have stable careers and finances. The increased popularity of cohabiting before marriage has also likely caused a dip in divorce rates. Based on gender, men were more likely to share the blame, whereas women were more likely to blame their spouse for the divorce.
We conducted a survey of 501 divorced people who live in the United States. Respondents ranged in age from 22 to 77 with a median age of 39. Sixty-five percent of our respondents were female, and 35 percent were male. We included an attention-check question in our survey to help identify any participants who didn’t answer questions seriously. Participants who failed the attention check were disqualified.
There are two kind of grounds for divorce: fault and no-fault. Irreconcilable differences are an example of no-fault grounds for divorce.
Before no-fault divorce laws were passed (and every state in the United States of America now allows divorce on a no-fault basis), a husband or wife could not obtain a divorce unless he/she could prove that his or her spouse had committed marital fault.
No, really. I’m not kidding. It got to the point that spouses we didn’t have fault-based grounds for divorce, but wanted a divorce nevertheless, would collude with each other and perjure themselves to commit fraud on the court: the husband or would would agree to claim, falsely that he/she committed adultery (or some other fault), and the other spouse would go along with the sham. Together they would represent to the court that a divorce was warranted on the basis of adultery that never took place, simply so they could get divorce from one another. lawmakers, realizing that this was happening, and realizing that there were many people in need of a divorce who could not qualify under existing laws, responded with the passage of no-fault divorce laws.
Fault-based grounds for divorce are those that allege that your spouse has committed one or more kinds of wrongs that would entitle you to a divorce.
No-fault grounds are those that allege that you don’t need or want to allege that your spouse has done anything wrong such that you are entitled to a divorce; instead, alleging no-fault grounds means that you just want out of the marriage, without having to blame your spouse as an excuse for getting divorced.
Fault-based grounds for divorce can vary from state to state, but generally the “marital faults” that qualify include:
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.
Should child support be ordered reduced as soon as (automatically when) the supporting parent loses his/her job through no fault of his/her own?
Of course.
The only reason we don’t have such a law in place is because of greedy people who don’t want child support payments to stop or decrease under any circumstances.
Any politician who would have the guts to stand up for a law that would condition the payment of child support upon the obligor having employment (or some other reliable source of un-earned income) would not be re-elected.
Now clearly the law should not be that one pays child support only if one has a job or steady income because we know that there are many child support payors who would simply quit their jobs or be underemployed to avoid paying child support.
But your question was why don’t we have a law that provides you don’t have to pay child support in the event you lose a job through no fault of your own. Clearly such a law should exist. You don’t have the ability to pay child support if you don’t earn money through your job. And you can earn money through your job if you don’t have that job due to no fault of your own.
If Mom and Dad are married and Dad loses his job, the family’s lifestyle naturally and inexorably decreases in response to the resulting loss of income. This is unfortunate, but nobody can say this is unfair. What’s so perverse is that if Mom and Dad get divorced, and then Dad loses his job, he can (and almost always is) ordered to maintain the lifestyle of his ex-wife and children, even though he has no ability to do so. This is clearly not just unfair, but immoral, and it is not the purpose of the law to impose such impossible burdens.
Utah Family Law, LC | divorceutah.com | 801-466-9277
It is certainly understandable if one desires to divorce a spouse who has committed adultery. The law understands this as well, which is why adultery is grounds for divorce in every state in this country.
But neither the law nor the Judeo-Christian religions mandate divorce in the event of adultery. Even most areligious people agree that adultery does not necessitate divorce. Indeed, public policy, every religious creed I know of, and the mental health care community discourage divorce generally, even if there may be a “fault” basis for divorce. Why might that be?
Adultery will almost always shake the innocent spouse’s trust in the adulterer. Adultery can so deeply hurt and anger the innocent spouse as to make him or her feel that forgiveness is impossible.
Some adulterers are unrepentant. They are therefore impossible to trust. Worse, their promiscuity poses a literal threat to the health and life of the innocent spouse. Their chronic infidelity raises the realistic specter of abandonment of the innocent spouse and children, if there are any. Clearly, there are situations in which adultery may be reason enough for divorce.
Almost every divorce, however, will harm children. Even the end of a dysfunctional marriage leaves children feeling unmoored, betrayed, rejected, and insecure. Sometimes a divorce is necessary for the children’s immediate and long-term safety and well-being (both physical and emotional), even if it is painful and traumatic for them.
One of the incalculably priceless benefits of marriage is having a family because children help to strip a husband and wife of many vices they might not otherwise have chosen to give up. The choice to be a parent is a choice to make sacrifices that ultimately create—by an order of magnitude—a more meaningful, worthwhile life.
When you commit to being a good parent, you inherently commit to becoming a far better person generally. Committing to being a good parent necessarily requires committing to being a better spouse. These facts give new and deeper meaning to the phrase “staying together for the sake of the children.” If a husband and wife find it difficult to overcome the effects of adultery on themselves, they may discover that staying together for the sake of, for the love of, for the protection of and for the benefit of their children will reveal to them why and how they can and should repent, forgive, and recommit to each other.
Utah Family Law, LC | divorceutah.com | 801-466-9277
