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Tag: irreconcilable differences

Should I file for a no-fault divorce or for an uncontested divorce? 

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  

https://www.quora.com/Me-and-my-husband-we-have-no-kids-together-nor-a-property-that-we-own-so-I-was-wonder-if-I-should-filing-no-fault-divorce-or-uncontested-divorce-We-been-separating-for-2-year-and-haven-t-contact-each-other-since/answer/Eric-Johnson-311  

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Is staying with parents during pregnancy grounds for filing for divorce?

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  

https://www.quora.com/Is-staying-with-parents-during-pregnancy-a-divorce-cause/answer/Eric-Johnson-311

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Do you need a reason to get a divorce?

Do you need a reason to get 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.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/For-what-reasons-are-fathers-most-likely-to-lose-custody-of-their-child/answer/Eric-Johnson-311

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How do you divorce when your doesn’t want to go through with it?

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, 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;
      • cruelty;
      • desertion (actual desertion, constructive desertion);
      • fraud;
      • 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

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Pure no-fault divorce states (according to LegalZoom):

  • California
  • Colorado
  • District of Columbia
  • Florida
  • Hawaii
  • Indiana
  • Iowa
  • Kansas
  • Kentucky
  • Michigan
  • Minnesota
  • Missouri
  • Montana
  • Nebraska
  • Nevada
  • Oregon
  • Washington
  • Wisconsin

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Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/How-do-you-divorce-someone-when-one-of-the-people-doesn-t-want-to-go-through-with-it-Does-it-require-both-parties-to-cooperate/answer/Eric-Johnson-311

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Are irreconcilable differences the same as an at-fault divorce?

No.

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.

See Utah Code § 30-3-1(3)

Other historical fault-based grounds for divorce include:

  • existence of a loathsome disease concealed from the other spouse at the time of marriage were contracted afterwards
  • substance abuse other than and/or in addition to alcohol abuse
  • bigamy
  • impotence
  • force or fraud
  • mental illness
  • carnal abandonment (refusing to have a reasonable amount of sexual intercourse with one’s spouse)
  • infertility (particularly if your infertility was known and you concealed the fact before marriage)
  • sexual orientation ( g., you are heterosexual and you discover that your spouse is homosexual)
  • changing religions after marriage or abandoning one’s religious faith after marriage

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Are-irreconcilable-differences-the-same-as-an-at-fault-divorce/answer/Eric-Johnson-311

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