Divorce (or the dissolution of marriage) is defined as the final termination of a marital union, cancelling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties. The dissolution of a marriage, in most countries, requires the sanction of a court or other authority in a legal process. Within this legal process courts resolve issues such as spousal support, child custody, child support, distribution of property and division of debt.
There are two types of divorces, they include No-Fault and At-Fault – with all states no having adopted the No-Fault divorce.
No-fault divorce
With a no-fault divorce, no-fault means that for the dissolution of a marriage to occur, no allegation or proof of fault of either party is required. With no-fault, the application can be made by either party or by both parties jointly. This type of divorce is one in which the dissolution of a marriage requires neither a showing of wrong-doing of either party nor any evidentiary proceedings.
With this, a no-fault divorce can allow a family court to grant a divorce in response to a petition by either party to the marriage, without requiring the petitioner to provide evidence that the respondent has committed a breach of the marital contract.
For the party who prefers to remain married, the no-fault divorce limits the potential legal defenses of this person.
At Fault Divorce
Prior to the no-fault divorce revolution, one could only obtain a divorce if they could show fault of the other party. Simply stating that you did not love one another any more was not enough proof. Proof had to include proving that one spouse had committed adultery, abandonment, felony, or other similarly culpable acts. However, the other spouse could plead a variety of defenses, like recrimination (essentially an accusation of “so did you”). A judge could find that the respondent had not committed the alleged act or the judge could accept the defense of recrimination and find both spouses at fault for the dysfunctional nature of their marriage.
The problem with these types of requirements was when or if both spouses were at fault or if neither spouse had committed a legally culpable act but both spouses desired a divorce by mutual consent. Lawyers began to advise their clients on how to create legal fictions to bypass the statutory requirements. One such method was referred to as “collusive adultery”, in which both sides deliberately agreed that the wife would come home at a certain time and discover her husband committing adultery with a “mistress” obtained for the occasion. The wife would then falsely swear to a carefully tailored version of these facts in court (thereby committing perjury). The husband would admit a similar version of those facts. The judge would convict the husband of adultery, and the couple could be divorced.
In many other states, especially California, the most popular allegation for divorce was cruelty (which was then unavailable in New York). For example, in 1950, wives pleaded “cruelty” as the basis for 70 percent of San Francisco divorce cases. Wives would regularly testify to the same pitiful (and often false) facts: their husbands swore at them, hit them, and generally treated them terribly.
Within the No-Fault divorce is the Uncontested divorce. Statistics show that 95% of divorces in the U.S. are uncontested due to both parties coming to an agreement (either with or without lawyers/mediators/collaborative counsel) in regards to their joint property, children and support issues. If the two parties cannot come to an agreement, they risk the courts deciding for them.
Defining how to properly obtain a divorce will depend upon the state you live in. Each state has its own laws and rules regarding the process of divorce that one should follow.
Steven Medvin is the Executive Director of SMP Advance Funding, LLC, which provides lawsuit funding to individuals who need a lawsuit loan for pending lawsuits. For more information please visit: https://www.smpadvance.com
