Fault vs. No Fault Divorce

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Fault vs. No Fault Divorce

Post  Admin on Mon Sep 21, 2009 4:25 pm

In order to obtain a divorce that dissolve the marital relationship, specified reasons must exist. These reasons, called grounds, are spelled out in state statutes. The two categories of grounds are no false and fault. The major no fault grounds are as follows:

Living apart
Incompatibility
Irreconcilable differences, irremediable breakdown.

In Arizona however, there is only one ground for a no-fault divorce, the marriage is irrevocably broken.

When a divorce is granted on a no-fault ground, material misconduct is, in most respects, irrelevant. The divorce statutes might provide that the "Evidence of specific acts of misconduct shall be improper and inadmissible, except where child custody is in issue and such evidence is relevant." a divorce sought on a no-fault ground, therefore, will not involve cross-examination designed to ferret out a blameworthy party. No fault grounds have made such testimony highly unlikely.

This does not mean, however, that fault grounds have been abolished. They still exist in most states. The ability of no fault grounds, however, and their ease of use have meant that the fault grounds are often not used.

There is one notable exception to the decline in the use of grounds. A number states are experimenting with a new marriage option called covenant marriage. Couples in states like Arizona have a choice between conventional marriage and a covenant marriage. Divorce from conventional marriage is no fault, whereas divorce from a covenant marriage requires proof of material fault such as adultery, physical or sexual abuse, and abandonment. Spouses in a covenant marriage must also make a commitment to obtain counseling before and during the marriage. Reformers hope that the availability of this new option will encourage couples to engage in more serious planning before entering the state of marriage.

For many years, fault grounds were the only grounds for divorce, the premise being that marriage should not be terminated unless there was evidence of serious wrongdoing by one of the spouses-blame had to be established. Many believe that such stringent divorce laws would help prevent the failure of marriage. In colonial America, it was common to deny the guilty party the right of remarriage if the divorce was granted. The payment of alimony was sometimes used to punish the guilty spouse rather than as a way to help the other become reestablished. In short, guilt, wrongdoing, and punishment were predominant themes over divorce laws.

During this period of fault-based divorce, the system was frequently criticized as irrelevant and encouraging fraud. Over 90 percent of divorces were uncontested, meaning that there was no dispute between the parties. Since both spouses wanted the divorce, they rarely spent much time fighting each other about whether adultery, cruelty, or other grounds existed. In fact parties often lied to the courts about the facts of their cases in order to quickly established that fault did exist. While such conclusion was obviously illegal, the parties were seldom caught. Since both sides wanted the divorce, there was little incentive to reveal the truth. The system also encouraged migratory divorce, where one of the parties would migrate or travel to another state solely to take advantage of its more lenient divorce laws.

Not everyone, however, is happy with the shift to no-fault divorce. There are conservatives who regret that marriage is now so easy dissolve. No-fault divorce has also removed an emotional outlet. There are some clients who want and need the opportunity to tell the world about the abuse they have received from their spouse. They become frustrated when they learned that they cannot do so in the divorce court. In this sense, no-fault divorce presents some spouses from obtaining emotional closure through divorce.

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