With no-fault divorce if either partner wants a divorce they can get it and since their is no “who caused the divorce” the assets are split and alimony is rewarded regardless of the circumstance of the divorce.
Do you like this? I hate the idea that one partner could have been having a long affair and decide to divorce and then get half the assets of their partner plus alimony.
BTW, as I understand it, you dont even have to be married either because even people living together and sharing assets like insurance, car, house,and such can be considered common law and one partner can sue for alimony.
The issue of common law spouses and divorce law are going vary hugely by jurisdiction. But as to your point about someone having a long term affair - why wouldn’t their spouse divorce them on the grounds of adultery? In my experience, a no fault divorce only happens when both parties agree to it.
Alimony is becoming much less common these days, with the expectation that both parties should be capable of supporting themselves. You’ll see alimony awarded most commonly when there is a great disparity between the financial situations of the two.
Very few if any states actually require a 50/50 split; the apportionment of assets is subject to negotiation, and if the parties cannot agree, the judge tries for an equitable (not necessarily equal, but equitable) split.
Only a few states in the U.S. (nine, at last count) still allow common-law marriages; it has been abolished (or never existed) in most of the United States.
What’s the alternative? In the old days before no-fault, obtaining a divorce was more expensive, more time-consuming, and even more grueling than it is now. A divorcing couple had to air all of their dirty laundry in a public trial (e.g., put the wife on the witness stand and grill her about how often she refused her husband his conjugal rights and why, in full view of whoever happened to wander into the courtroom). Need to prove mental cruelty (one of the few grounds for divorce prior to no-fault)? Get ready for some expensive expert witnesses, and the spectacle of an abused spouse on the witness stand being cross-examined by a lawyer being paid to try to undermine his/her testimony.
In the old days, couples who wanted a divorce not infrequently resorted to legal fictions. For example, adultery was a valid grounds, so he’d hire a prostitute and make sure the wife would know exactly when/where to ‘catch him in the act’ (thus essentially condoning a form of perjury). In other states, if each spouse could prove the other did something wrong, then neither was at fault, so the marriage could not be dissolved (legal doctrine of recrimination). That could lead to situations, e.g., where both spouses were openly committing adultery, yet neither could obtain a divorce.
In my jurisdiction, the courts don’t care to know the cause of the divorce. If one spouse wants it, and they allege an irretrievable breakdown of the marriage, it will be granted. All that needs to be decided is, if children are involved, custody, support and parenting time, and in all cases, property division.
Well, this is in IMHO. I guess it comes down to this. Say you’re married for 20 years. Your stay at home hsuband has been having an affair for six of those years. But through it all, he has been raising your children, keeping your house clean, making sure dinner is on the table, etc. He is stay at home because you both agreed on it.
The divorce comes. You want to punish him for those six years of an affair, and he was wrong, I agree. But I disagree that he should not get credit for all the years he spent making your house and home a pleasant place. Not to mention, his career is shot, and he now needs to make his own money and survive somehow. So you have to pay him alimony.
That’s right! Alimony goes both ways nowadays. It’s not just the man paying the woman, all the time. It just so happens that stay at home wives are still more common, and I reversed the genders on purpose.
In the end, I don’t think the state should care why you are getting divorced. Did it care why you were getting married (love, convenience, pay off bills, buy a house together)? I’d rather not have couples air their dirty laundry but just settle the divorce as amicably as possible and not drag the kids through the muck too much.
I think you’re confused about what “no fault divorce” is. It simply means that they’ll grant a divorce at the behest of either party without having to demonstrate some sort of wrongdoing or irreconcilable problem to the court. In places that didn’t have it, if you couldn’t demonstrate a problem you couldn’t get divorced. This meant that it was often very difficult to divorce an unwilling partner unless they had done something really egregious (and provable). It also led to weird situations where with amicable divorces the couple would sometimes have to fake an affair or something like that to get the court to grant a divorce.
Every state has no-fault now (although some still require various efforts to reconcile) but even back when some didn’t, being the “at fault” party didn’t necessarily affect how well you’d do in the property dispersion and support end of things although obviously that usually put you at a disadvantage in the judge’s eyes. These days, some jurisdictions will still take “fault” into account (either officially or not) with property disbursement and such, but not all of them. A lot of courts also may not care about simple infidelity but might consider abuse or something else egregious. But, at any rate, that’s a completely separate issue from no-fault divorce.
Japan is a good example of what happens when you don’t allow people to get divorced except for some fairly strictly defined reasons, including infidelity. They do allow divorces if both parties agree, and in fact, it’s much easier than in the States as you simply file a form the local city or town offices.
However, if one party refuses to give permission, it can take forever to actually get a divorce. I knew people who had moved out, had a new family and were openly living with their new SO, but because they couldn’t obtain a divorce without their legal spouse’s approval, they were unable to get remarried. In many cases, the legal spouse would not consent to a divorce out of spite.
If the other party were to cheat, then they could obtain a divorce, so the spiteful party has to stay out of new relationships.
A lot of religions and conservatives cite the no-fault divorce laws as evidence of the breakdown of families in America, but they need to get real. I grew up in the middle of the ultraconservative Utah in the 60s and 70s and there were many, many unhappy marriages. People would have affairs, there would be abuse and a myriad of other signs on unhappiness.
My ex had an affair with a friend of mine, which caused the end of our marriage. Part of the mess I had to confront when the truth came out was the extent of the collusion between them and the spying they both did in the lead up to the revelation - for months they’d watched and discussed my every move, read all my email, had leading conversations with me and then reported back to each other. I found it quite chilling to think that if we lived somewhere without no-fault divorce, the pair of them had had access to my entire life AND my complete trust. There’s no end to the mischief they could have committed. That’s got to be a really big problem when only one person in the marriage is aware of its imminent end.
While in theory I could have screwed him over financially because he’d been the cheater, in practice he could very well have framed me and walked away with the house, the cars, the money and the mistress. Even though those were never the stakes, thank you no fault divorce laws, some peculiar events from the weeks prior only really make sense if he been trying to engineer a situation where he could walk away looking like the injured party.
Infidelity can be used as a bargaining chip in settlement talks. If you can show that the adulterous spouse used significant marital funds to conduct the affair, or that it’s had a negative effect on your children, that is advantageous when splitting marital property or deciding who gets custody. But in terms of granting the actual divorce, the Courts do not care whose fault it is.
I know a couple who didn’t have a terrible marriage, they just drifted apart and didn’t really enjoy the state of being married. They did a no-fault divorce and it worked well for their particular situation. Neither has remarried nor wants to. They live in houses a block away from one another, they both get together with their children for holiday celebrations, and they get along rather well as long as they live apart. It wouldn’t be a stretch to say that they have remained friends.
I’m not sure such an arrangement is the answer in a marriage where the parties are not equal (one has had an affair, the other not), but in the right situation, I’ve seen that it can work well. Truly depends on the individual circumstances.
Or, maybe more accurately, *staying *married should be a decision that both parties make. It would be, as noted earlier, pretty reasonable for a marriage to be ended unilaterally.
Divorce in many states is already hard to get. Parents have been finding ways for a really long time to make raising children in split households work, and while it would rarely be considered ideal, I don’t know that it would be any more ideal to hold together a bad marriage to avoid that scenario.
In the “old days” it was also common for women wishing to divorce to “move” to Reno, Nevada just long enough to establish residency (six weeks as I recall) and get a Nevada divorce without going though all the hassle of divorcing in their home state. There were hotels/boarding houses that catered to this trade. (If you’ve ever seen the 1930’s movie and/or play “The Women,” there’s a great scene set in a Reno hotel for divorcing women. Actually the play’s scene is better than the movie’s)
But is dissolving a marriage better for children than just keeping it with adultery? I can see times where it would be. But people seem to be of two minds when talking about divorce. When not discussing children, they “fall out of love” or are just “not right for each other.” But, when children get involved, the assumption is that relationship is actively toxic…
Of course a divorce is better for children in the latter case. But is it in the former case? That’s why I think it is so rarely mentioned with regard to children.
It’s not as if marriage has always involved people who love each other.
Excellent post. I’ve quoted the whole thing in the hopes that people who don’t understand what a no fault divorce is will actually read it before commenting.
My parents and maternal grandparents were all separated and mostly living with other people before no-fault divorce arrived. My grandparents did not want to discuss his affairs and cruelty in a public forum and my parents’ divorce would have involved disclosing Dad’s homosexuality, something he had previously been arrested for but not convicted of by grace of my Mother falling pregnant and taking the stand at his trial (I am rather proud of being the product of gay sex in a public toilet block :D)
Given the then status of the families involved it would have been front page news in both cases prior to no fault provisions. My grandparents didn’t even talk in the 30 years prior to the divorce, he quickly remarried, she never did.
During the time SSM was being brought up in Spain, some townships opened up “de facto partners registries”. These weren’t legally binding, but they were put in place as a way to let those long-term partners who couldn’t get married have a record, some sort of official paperwork. The people creating them were mostly thinking of same sex couples, but two other groups signed up:
couples where one of the partners was going through a horrible divorce, one of those which end up taking three times as much as the marriage itself lasted.
couples who are against marriage because “it’s a bourgoise institution” but who want the legal benefits. These get very surprised when told that no, since they didn’t do the regular paperwork because they wanted to be out of the system, they are considered as being out of the system.
The advent of SSM didn’t kill those registries because of these groups. Divorces are like amputations: nobody in his right mind wants one, but if it’s happening, it should happen in the least painful possible way - it shouldn’t be a torture.