What is No Fault Divorce?

No-fault divorce refers to a divorce in which the granting of a dissolution of marriage does not require  a showing of wrong-doing of either party. It is therefore not necessary for one party to produce evidence that the other has committed a breach of the marital contract. In other words. You do not have to prove that your spouse cheated or misrepresented themselves in order to seek a divorce.

“No-fault” divorce in the United States originated in the state of California effective January 1, 1970, in a bill signed by then governor, Ronald Reagan. In August of 2010, New York governor, David Paterson, signed “no-fault” divorce into law, and since October 15th, 2010 no-fault divorce has been legal in all 50 U.S. states.

Prior to no-fault rules, a divorce could only be obtained through the showing of fault of one of the parties. Unfortunately it wasn’t just about proving the other party didn’t love you anymore. Instead you had to prove one party had breached the marital contract through adultery, abandonment, felony or other culpable acts. In circumstances where there was no party at fault and the couple simply wanted to dissolve their marriage a couple might arrange for what New York practitioners called “collusive adultery”. A pre-arranged time would be set by mutual agreement for Wife to return home to find Husband with a mistress. This finding would offer the evidence of adultery necessary to obtain a divorce.

These types of arrangements were common along with black mail through unsubstantiated accusations of fraud, cruelty and criminal behavior.  I am told by attorneys in New York and Connecticut that black mail and other legal fictions were common for divorces in New York state until the 2010 adoption of no-fault laws.

The opposing party would often not contest pleadings or do so only sparingly as a token for the courts. Ultimately judges and some lawyers began to recognize the affect these legal fictions could wind up having on the judicial system considering the dissolution proceedings were started with lying under oath.

The term no-fault may eventually fall out of the vernacular of the American people as no-fault laws have now been adopted by all states in the union. I was asked to explain what it meant recently and imagine it will take time with television representations like the 1960’s  divorce played out in the AMC series Mad Men. The DVD for Mad Men Season 4 contains “Divorce: Circa 1960s” – A three-part documentary about divorce during a time when the traditional family was the core of American society. I have not seen it yet but friend and colleague, Constance Ahrons, has had good things to say.