If it were, we would likely find ourselves back in the situation that led to the creation of no-fault divorce in the first place.
What is no-fault divorce? A divorce that can be obtained without having to prove “fault” on the part of your spouse. What does that mean?
Fault-based divorce is a divorce decree when the court finds that your spouse is at fault for doing or failing to do something that irreparably damaged the marriage relationship. Fault bases include in most jurisdictions: abuse/cruelty, adultery, abandonment, contracting a “loathsome disease” (i.e., a sexually transmitted disease), being sentenced to prison/committing a felony, habitual drunkenness, and impotency at the time of the marriage. These are known as “marital faults”.
No-fault divorce is a divorce one can obtain without having to prove one’s spouse has committed any kind of marital fault. One can simply file for divorce because one wants a divorce.
Before no-fault divorce was made law (it’s the law in every state in the U.S.A. now), an unhappy couple in which both spouses both agreed they wanted a divorce would have to collude and lie to the court and claim that one of the spouses had committed a marital fault, so that they could get divorced. That was clearly not a good thing, and so it was believed that by making no-fault divorce legal it would reduce the number of unhappy marriages.
The unintended consequence of no-fault divorce is, however, that far too many people give up too easily on what could have been a happy marriage because no-fault divorce is so easy to get.
Bottom line: we already know what would happen if we made no-fault divorce illegal (no matter how well-intentioned our reasons for doing so): couples who really wanted a divorce would simply lie to the court, claim fault where there is none, and obtain an ill-gotten divorce anyway.
We cannot reduce the divorce rate unless and until society learns and accepts the fact that a strong marriage and family is more than worth the effort and sacrifice it requires. We need to value marriage and family, not just give lip service to its importance. And we need to accept that with exception so rare as to be negligible, men and women are happiest and their lives the most worthwhile and fulfilling in the roles of spouses and parents.
Divorce is a necessity in certain, narrow circumstances (or at least it should be).
Recklessly divorcing is as “right” as is recklessly driving. It happens, but it’s wrong.
Before no-fault divorce became the law, one could not obtain a divorce without having a marital fault-based reason for seeking a divorce. Those “marital faults” were few and specific, though not necessarily the same in every jurisdiction. Here is a list of the most common marital faults that constituted a basis for divorce:
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.
(these are the fault-based grounds for the divorce as articulated in the Utah Code at Section 30–3–1(3))
Other grounds in other jurisdictions:
Conviction of a crime that can result in imprisonment (usually for a year or longer)
Contracting a “loathsome disease” (usually a sexually transmitted disease)
Mental illness
Substance abuse
Infertility
Homosexuality (for heterosexual married couples) that was concealed from the spouse before the marriage
Failure or refusal to support spouse financially
“When either party has joined any religious sect or society which professes to believe the relation of husband and wife unlawful, and has refused to cohabit with the other for 6 months together” (this is a ground for divorce articulated in New Hampshire Revised Statutes, Section 458:7 (Causes for Divorce)).
Fault-based divorce ceased to be the only way to obtain a divorce when “no-fault divorce” was made law. While fault-based divorce is still available, no-fault divorce is an additional (and much easier) way to obtain a divorce.
Some believe that “no-fault divorce” means that “my spouse cannot file for divorce because I’m not at fault.” Not so. In fact, no-fault divorce means almost the exact opposite: under no-fault divorce laws, one can petition or complain for divorce without having to plead marital fault as the reason for seeking the divorce and without having to prove marital fault to obtain the divorce.
When no-fault divorce was made law, it was believed that it would provide relief to spouses who were in miserable, dysfunctional marriages but who did not have any of the fault-based reasons for seeking a divorce. In that respect, no-fault divorce succeeded. An unintended consequence of no-fault divorce is that it made it too easy to obtain a divorce, resulting in more harm than good: the destruction of a marriage and family and all of the attendant consequences. Too many couples ended up (and still end up today) divorced when they could have and should have stayed married—they would have been happier and healthier (both physically and mentally) and wealthier had they worked on saving the marriage and family, rather than breaking them up.
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
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
This is what is known as “no fault divorce”. Every state in the U.S. has no fault divorce laws.
Many people believe that “no fault” divorce means that one cannot get divorced without being at fault. No, it means just the opposite.
No fault divorce is the process of filing for an obtaining a divorce without being required to prove marital “fault”. Instead, all one has to do to file for a no fault divorce is allege incompatibility or irreconcilable differences such that the marriage cannot or should not continue.
One does not need to prove things like adultery, physical abuse, alcohol or drug abuse, emotional cruelty, etc. to obtain a divorce. No fault divorce means one can get a divorce for no reason at all, but simply because one does not want to be married anymore.
Some people believe that you cannot get divorced if your spouse “refuses to sign the papers”. Not true. Your spouse does not have to consent for you to get divorced. Your spouse cannot prevent the court from granting you a divorce by “refusing to sign the papers” because “your spouse signing the papers” is not required to obtain a divorce.
Utah Family Law, LC | divorceutah.com | 801-466-9277
If a spouse “refuses to sign the divorce papers” would the divorce be in limbo?
No.
The days of a spouse preventing a divorce due to a refusal to agree to divorce ended with the creation of “no-fault divorce”. Many people think that no-fault divorce mean that “you can’t divorce me because I’ve committed no-fault.” Actually, just the opposite is true. People can get a divorce regardless of whether their spouses have committed any fault or not. That’s why it’s called “no-fault divorce”.
See, before no-fault divorce, the only way one could obtain a divorce is if he or she had a “fault” basis for divorce. Those bases were, depending upon what jurisdiction you lived in:
Adultery
Cruelty
Abandonment or desertion
Willful neglect to provide the common necessaries of life
Mental illness
Criminal conviction
Substance abuse
Impotency of the respondent at the time of marriage
Now, however, every state in the U.S.A. allows divorce based upon “irreconcilable differences” or a similar ground, and “irreconcilable differences” if one of the two married people feels that way. Thus, anyone can get a divorce without having to prove anything other than a desire for the divorce and without having to get his/her spouse’s consent to divorce. No need to get one’s spouse to “sign the papers” as a condition of obtaining a divorce.
Utah Family Law, LC | divorceutah.com | 801-466-9277
What are the major differences between fault and no-fault divorces and which one should become more universally standard?
It used to be that one could not get a divorce without establishing “fault” as grounds for divorce. “Fault” had a particular meaning in the context of divorce.
Generally, fault-based laws grant a divorce if one person is found guilty or “at fault,” and the other spouse is found “innocent.” Consent of the innocent party is required before a divorce is allowed. Finding a party guilty of one of the available and vague statutory grounds for divorce, such as adultery, abandonment, or a protracted separation period, often is difficult and expensive. Social scientists criticized the fault-based system as contributing to the protracted acrimony between former partners who continued to be in contact through parenting their children. Officers of the court suspected that individuals who wished to divorce under fault-based laws often did so through perjury and the falsification. of evidence to get around strict statutory hurdles.
No-fault divorce was conceived as a way to make divorce less acrimonious and restrictive, rendering the legal environment neutral and noncoercive. No-fault divorce laws do not require a finding of the innocence or guilt of either party. Claimants can file for divorce generally on the basis of the “irretrievable breakdown” of the marriage or the “incompatibility” of the parties without proving one spouse is at fault. Both individuals are potentially responsible for the care of their children, physically and monetarily, and spousal support and property can be awarded on the basis of the financial resources of each party, rather than on the basis of their guilt or innocence.
Although I’m sure everyone would agree that no-fault divorce was motivated by good intentions, many also agree that no-fault divorce may have made divorce a little too easy, causing the end of marriages that should not have broken up, with the divorce doing the spouses and children more harm than good.
Stephanie Coontz’s research indicates that successful partnerships presently work better and are more effective than marriages of the past. “They’re more fair, more loving, more intimate and more protective of children,” Coontz says. “So that’s one piece of good news.” That good news, though, applies only to about half of married couples; the U.S. divorce rate hovers at about 45 percent. That’s down from the 1970s and ’80s, but some of that decline can be attributed to fewer trips to the altar.
“Marriage is not always the better option,” Coontz states, “but we can save more healthy marriages than we do. It’s a huge challenge, but we can rise to it.”
(The Origins of Modern Divorce, Coontz, Stephanie Fam Process. 2007 Mar;46(1):7-16).
Utah Family Law, LC | divorceutah.com | 801-466-9277
A lot of people think that “no-fault divorce” means that your spouse cannot get a divorce unless you’ve done something wrong (i.e., something to cause your spouse to “deserve” a divorce from you).
Actually, no-fault divorce is just the opposite.
No-fault divorce means that you don’t have to prove your spouse is at fault to get a divorce. You can get a divorce simply because you no longer wish to be married anymore.
Until no-fault divorce was made legal, you could not file for and get a divorce unless your spouse had committed one or more of the recognized “marital faults”. Each state is different, but in Utah (where I practice law), the “fault” grounds are:
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
As you can imagine, that made getting a divorce virtually impossible if the acts or omissions of your spouse didn’t fall into one of the “fault” categories, and many, many unhappy couples who wanted to divorce could not divorce for this reason. That’s why no-fault divorce was created.
In Utah, the no-fault phrase invoked to seek a divorce is “irreconcilable differences of the marriage.”
With no-fault divorce having been around for almost 50 years now (California was the first U.S. state to pass a no-fault divorce law when Governor Ronald Reagan signed it into law in 1970, New York was the last state to pass a no-fault law in 2010. Utah enacted no-fault divorce in 1987) and the increase in divorce it has brought with it, some have come to question the wisdom of no-fault divorce, but there is no indication of going back to the fault-based days of divorce.
Utah Family Law, LC | divorceutah.com | 801-466-9277