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Tag: no fault

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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What are the grounds for filing for a divorce in Utah?

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. 

Utah Code § 30-3-1.  Procedure — Residence — Grounds. 

(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  

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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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Give my spouse half my retirement in divorce, or just ride it out?

If I have to give my spouse half of my retirement after a divorce, should I still go forward or just ride it out?

Great question, but not for the reasons you may think.

Remember this first: just because you do not file for divorce does not mean you will prevent a divorce from occurring; your spouse can file for divorce and obtain a divorce whether you “agree” to it or not. This is what “no-fault divorce” is.

“No-fault divorce” does not mean that “you can’t divorce if I’ve committed no fault.” No. What no-fault divorce really means is that one who files for divorce is not required to find fault or ascribe fault to his/her spouse as grounds for divorce.

Otherwise stated, even if your spouse is perfect in every way and done nothing wrong, you can file for divorce against your spouse anyway; no fault need be ascribed to your spouse to get a divorce from your spouse.

So, as you can see: if you think that “I’ll hang on to all of my retirement funds/benefits, as long as I don’t file for divorce,” that is not true. You can’t just “ride it out” and keep control of all of your retirement funds/benefits. The reason why is that your spouse could file for divorce against your will and seek (almost surely get), in the absence of exceptional circumstances, half of all retirement funds/benefits acquired or accrued during the marriage.

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

https://www.quora.com/If-I-have-to-give-my-spouse-half-of-my-retirement-after-a-divorce-should-I-still-go-forward-or-just-ride-it-out/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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Why not reduce child support when the supporting parent loses his/her job?

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

https://www.quora.com/Should-US-child-support-orders-reduce-support-if-their-supporting-parent-loses-their-job-through-no-fault-of-their-own/answer/Eric-Johnson-311

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