A no-fault divorce allows couples to end their marriage without proving fault, making the process simpler and less contentious. Unlike contested divorces, no-fault divorces typically cost less, take less time, and reduce legal disputes between spouses.
By Brad Nakase, Attorney
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You have the legal right to a no-fault divorce if you and your spouse are amicable and you both agree that it is time for the marriage to end. In a no-fault divorce, neither spouse has to prove guilt in order to dissolve the marriage. Actually, in a no-fault divorce, neither party needs the other’s consent to dissolve the marriage.
If one partner wants to get a divorce, they don’t have to blame or prove fault against the other. Each state’s no-fault divorce laws are slightly different in wording, but in general, one of the spouses filing for the divorce must prove that the marriage has irretrievably broken down due to incompatibility, irreconcilable differences, or irreparable breakdown. To qualify for a no-fault divorce in certain states, you need to have lived apart for a certain amount of time, also known as a legal separation.
The original divorce laws required spouses to prove a “acceptable” cause for the dissolution of their marriage, such as infidelity or domestic violence. Legal developments in family court and divorce reform have made unilateral no-fault divorce available in all 50 states and the District of Columbia. The first state to pass such a law was California in 1970, and the reason for the divorce is known as the “grounds” for divorce.
In 1757, Prussian King Frederick II issued an edict allowing spouses to dissolve their marriage without placing blame on one party. Russia was the first country to pass modern no-fault divorce laws in 1917, just after the Bolshevik revolution. This was the beginning of faultless divorce laws worldwide.
Up until the late 20th century, the only way to legally end a marriage in the US was through an at-fault divorce. This meant that couples wanting a divorce had to prove, either directly or through extensive efforts to invent or fabricate evidence, that one spouse was at fault.
In the early 20th century, the National Association of Women Lawyers (NAWL) was a leading voice in the movement for no-fault divorce. The first U.S. state to pass a no-fault divorce law was California, which became fully effective in 1970 after Governor Ronald Reagan signed the Family Law Act of 1969. The most recent state to pass a no-fault divorce law was New York in 2010.
In many cases, a no-fault divorce can be easier, less expensive, quicker, and more private. To get a no-fault divorce, you just choose the no-fault option as the reason for divorce when you file at your local court or on their website. Your spouse cannot challenge no-fault grounds for divorce, and you don’t have to prove why you want the marriage to end.
For the most part, this option allows you to get a divorce even if your spouse isn’t on board with the idea. If you file and your spouse doesn’t answer, the court can grant a default judgment of divorce. On the other hand, if your spouse can show that your case hasn’t fulfilled state requirements for a divorce, like a waiting period, you might have to delay your divorce until you do.
The manner in which assets, alimony, and child custody are divided following a divorce can vary from one state to the next depending on the divorce filing preference.
Divorce settlement agreements, like property division agreements, are commonly used in no-fault divorces to establish how assets will be divided. With the assistance of a skilled divorce attorney, couples can prepare these agreements outside of court.
The length of a marriage, the incomes of the spouses, the number of children to be shared between them, and in some states, even adultery can be considered by the court when deciding how much alimony to award.
When there is no fault divorce, the child’s best interests are the most important thing to think about when deciding who gets custody. You can have shared custody, joint custody, or sole custody with visitation rights.
While all 50 states allow for “no-fault” divorces, some also allow “at-fault” divorces, wherein one or both parties can choose to blame the other for the dissolution of their marriage.
By eliminating the option for an at-fault divorce, sixteen states plus DC have become known as “no-fault divorce states”:
There are two types of divorce: no-fault and at-fault. At-fault divorces require you to state your reasons for divorce in the divorce petition and, if your spouse disagrees, to provide evidence to support your claims.
The acceptable grounds for divorce vary from state to state, but some common ones include adultery, insanity, incarceration, cruelty or abuse, abandonment, or drug abuse. If you need assistance proving fault, divorce attorneys can help you with that. However, keep in mind that an at-fault divorce can be more expensive and time-consuming than a no-fault divorce.
In an at-fault divorce, one spouse may be able to increase their alimony, strengthen their case for child custody, or receive a larger portion of the marital assets if they can show that the other spouse is to blame for the dissolution of the marriage.
In contrast to an annulment, which declares that the marriage was not valid when it was entered into due to factors such as one party being underage, the spouses being too closely related, or fraud or force used to get one person to consent, a fault divorce does not require these factors to be present.
An uncontested divorce is not the same as a no-fault divorce. Fault refers to the reason for the dissolution of the marriage, and whether or not a divorce is contested depends on whether or not your spouse agrees with everything that you are requesting in your petition for divorce at the time of the divorce.
In an uncontested divorce, the party served with the papers (the respondent or defendant) either opts out of answering or appearing in court, or they simply sign the papers, indicating their agreement with all the requests made for the divorce and any related matters (such as alimony, property division, child support, custody, etc.).
A fault or no-fault divorce can be an uncontested divorce; in the former, the parties do not dispute anything, and a trial is not necessarily required, so the process moves forward swiftly.
In a contested divorce, one party objects to the other’s proposed terms, and the matter will go to trial unless the parties can reach an agreement.
The best option for you might be a no-fault divorce, which makes the process easier and, in many cases, lessens the negative feelings between spouses by removing the public blame from the divorce.
In a contested divorce in California, the parties involved retain the services of attorneys to advocate on their behalf during the trial process regarding the division of assets and debts, as well as any issues related to child custody and spousal support (alimony).
By the time a couple reaches a mutually acceptable settlement and files a petition for divorce with the California courts, the process is considered uncontested, meaning that all parties involved have already decided on the terms of the divorce settlement.
After going over the divorce paperwork and settlement agreement, a judge will sign off on the divorce after making sure both sides are in agreement.
The majority of uncontested divorces take place in the comfort of a couple’s own home; there is no need for attorneys or a public trial; rather, the process is confidential and relies on the parties’ ability to communicate and reach an agreement.
When compared to uncontested divorces, which allow couples to settle their differences amicably and avoid costly attorney fees, contested divorces force couples to endure protracted court trials and shell out thousands of dollars for legal representation.
Furthermore, spouses can dissolve their marriage in around six months during an uncontested divorce, but the contested process takes significantly longer.
Depending on the complexity and number of contested issues, a contested divorce in California can take anywhere from one to two years to finalize. In contrast, couples who have filed for a summary dissolution and have irreconcilable differences will have to wait about six months to get a final judgment.
The parties’ ability to swiftly settle all issues and resolve any legal disagreements will determine how long it takes to finalize a contested divorce.
Some other things that can affect how long it takes to get a divorce in California are:
Due to the involvement of attorneys, whose fees make up the bulk of the divorce costs, a contested divorce in California can be exceedingly costly.
To be more specific, the hourly rate that California lawyers charge can range from $300 to $950, depending on factors such as their degree of experience, the reputation of the firm they work for, and the specific skills they possess.
The total cost of a divorce is directly proportional to the number of hours spent on the case by your attorney, including all correspondence and appearances in court.
Divorce attorneys in California charge an average of $12,500 to $15,300 for a contested divorce, but this can vary widely depending on the specifics of the case.
A retainer, which is typically between $3,000 and $5,000, is typically required to reserve the services of an attorney.
There may be extra expenses beyond the cost of hiring a divorce attorney, such as the cost of submitting the petition for dissolution to the court and the cost of serving your spouse with copies of the divorce documents.
For example, in California, the initial filing fee for a divorce is $435. You may also have to pay for things like the discovery process, which involves getting relevant records or looking into your spouse’s finances.
Contested divorces are rare and only arise when all other methods of conflict resolution have failed or when one spouse is intentionally trying to drag the other into a legal battle. In most cases, couples can get a divorce without any problems.
In the following cases, contested divorces are inevitable.
1. Couples Who Can’t Get Along
A contested divorce is your only option if you and your spouse are unable to resolve your differences through negotiation, particularly over child custody or financial issues.
If you and your spouse are unable to reach a mutual agreement on the division of assets, child custody, alimony, etc., before a divorce trial, the judge will make those determinations on your behalf.
2. Divorces in Which One Spouse Refuses to Participate
Both parties are required to divulge all of their property, real estate, and assets, as well as important financial details such as tax returns and details regarding retirement or investment accounts.
If your spouse is dishonest or refuses to reveal their assets, you can use the court’s authority to force them to produce accurate paperwork or face consequences.
3. Separations Involving Domestic Violence
If your partner has a history of domestic violence, you should inform the court of this fact and seek a restraining order in the event that they refuse to comply with the divorce process in an effort to regain control over you.
The court will prioritize protecting you and granting you a safe divorce if there is evidence that your spouse is engaging in harmful or abusive behavior that impacts you or your children.
While you and your minor children are going through a divorce, the state of California can provide you with resources to help you stay safe, including the possibility of temporary emergency child custody.
A contested divorce is one that involves a court battle, which can be lengthy, costly, and emotionally taxing. If you are thinking about getting a contested divorce, there are a few things you should know beforehand.
1. Time Is of the Essence
When a divorce is contentious, the process can drag on for years, depending on how complicated it is. You’re also bound to follow the court’s schedule, which can be chaotic at times. If your local court is particularly busy, you’ll have to make do with the dates they provide.
You will have to reschedule your dates if either of you is unable to attend that particular date.
2. It Costs More to Have a Contested Divorce
If your divorce is contentious, you will need the services of an attorney. However, keep in mind that the hourly rate for attorneys can add up quickly; in fact, some clients end up spending more than $10,000 on legal fees alone.
If you and your soon-to-be ex-spouse don’t have that kind of disposable income, it’s likely that your ex-spouse won’t either. However, if you’re both in a position where saving money is sensible, you may find that your shared desire to safeguard your bank accounts motivates you to explore alternative options for divorce.
3. The Stress and Trauma of a Contested Divorce
It is normal for divorce to be a difficult time. Many people report feeling stressed, anxious, or depressed during the divorce process.
Adding to the unease you may be experiencing, a contested divorce entails routinely disclosing extremely private information to complete strangers while simultaneously putting a significant financial burden on you.
It’s worth it to seek the help of a mental health professional if you feel you need it during a difficult divorce process; taking care of your mental health should be a top priority.
1. Why is a no-fault divorce a good thing?
Divorces that do not assign blame can be less complicated, less expensive, quicker, and more private than those that do. They can also be easier on children, allow for more amicable division of marital assets, and avoid punishing the party that is supposedly at fault.
2. Is a no-fault divorce subject to a waiting period?
In order to make sure that spouses have given themselves enough time to think about whether or not divorce is the right choice before making such a big decision, many states stipulate waiting periods before couples can finalize a no-fault divorce. These waiting periods can be anywhere from less than a month to a year-long and often require couples to live apart during that time.
3. In a no-fault divorce, is legal representation necessary?
Although legal representation is not necessary to initiate or complete a no-fault divorce, it can greatly streamline the process. If you and your spouse cannot reach a consensus regarding the division of marital assets or other important matters like child support, alimony, or custody, a divorce lawyer can help you assert your rights and interests in the final settlement.
4. Could we see the end of no-fault divorce?
Despite efforts by some legislators to repeal no-fault divorce, the majority of lawmakers and advocates believe that this legal provision effectively safeguards individuals from abusive marriages.
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