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The debate over no-fault divorce · Family Law Talk

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Speaker 1: Welcome to Family Law Talk. Familylaw Talk presented by Kurt
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Stangy of Stangy Law Firm PC. Stangy Law Firm is
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a multi state family law firm. Now here's your host,
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Kurk Stangy.
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Speaker 2: Welcome to Family Law Talk. We have an interesting topic today.
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The topic is the debate over no fault divorce and
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this episode today is based on an article on my
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blog Familawheadquarters dot com dated February eighteenth, twenty twenty five,
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and the title of the article is should no fault
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divorce end? So as a follow up to the episode today,
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going over to Familylawhadquarters dot com and read this article
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for more information. But let's go ahead and jump into
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the topic at hand. The reality is no fault divorce
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is becoming sort of a debate in political circles. Okay,
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many politicians have really began making comments about no fault divorce,
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expressing opinions about no fault divorce, and a lot of
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the opinions and a lot of the pontificating, if you will,
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which is most recent is sort of negative on no
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fault divorce, like sort of a yearning for days of
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the past where parties had to show fault to get divorced.
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So to give you a really quick historical synopsis, no
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fault divorce began in nineteen sixty nine in California when
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then Governor Ronald Reagan signed it into law to California. Okay,
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so this was a new thing. Thereafter, states started implementing
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it in passing laws allowing no fault divorce nationwide. As
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we sit here today, every state in the United States
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allows for no fault divorce. So presently sitting here today,
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parties don't have to show fault in order to get divorced. Okay,
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what parties have to show in order to get divorced,
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and the exact verbiage is going to vary based on state.
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In a general sense, both state statutes say something similar
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to this, which is, parties have to show that there
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are irreconcilable differences that exist and that there's no reasonable
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likelihood that the barriage can be saved. All right, So
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we're not placing blame, we're not saying it's anybody's fault.
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We're just saying the marriage can't be saved and that
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there's differences, and these differences or irreconcilable or irretrievable that
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the marriage cannot be saved. And so based on this
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legal standard, lots of parties got divorced and they got
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to divorced without showing fault. Okay, And this was different
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prior to nineteen sixty nine. Parties had to come into
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court in order to get divorced, and they had to
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show grounds where they had to show fault. And this
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could be adultery, could be domestic violence, abandonment, mental cruelty.
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Some states had other specific grounds. But in order to
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get divorced, it wasn't enough to say our differences are
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irreconcilable and we want a divorce. You had to show
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grounds in order to get divorced. So prior to nineteen
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sixty nine, a totally different ballgame in the United States.
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So if parties wanted to get divorced and there were
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no grounds, they couldn't get divorced. At least that's the
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way the laws were stated in the states in the
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United States prior to nineteen sixty nine. Okay, So a
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court could deny a divorce even where both parties wanted it,
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simply because grounds weren't shown, okay. And so today, with
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the advent of no fault divorce, it's a different ballgame, right, So,
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where both parties want a divorce, almost every court is
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going to grant it. Again, the legal standard is just
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simply that the marriage is irretrievably broken or their irreconcilable
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differences that the marriage can't be saved. And so in
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almost every circumstance where both parties want a divorce, the
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court's kind of granted. Now, there's some nuances to that,
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like if life is pregnant while divorce is pending in
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most states, you can't get divorced until that pregnancy is over. Okay,
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In some circumstances, a party can contest a no fault divorce.
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So one party could file for divorce and say the
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marriage is irretrievably broken, there's no reasonable likelihood it could
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be saved. The other spouse could contest that and say, no,
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I think this marriage is savable. In a general sense,
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if one party wants a divorce, I mean most judges
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are going to grant the divorce. The one exception I've
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seen come to light in some cases is circumstances where
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the parties are still engaging in sexual relations while the
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divorce is pending, maybe they're going on dates and still
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behaving in a way that sort of husband and wife like,
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and so in those kinds of circumstances, a judge can
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dot deny divorce if one party doesn't want it. But again,
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the vast majority of the cases, both parties want the divorce.
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They both say the marriage is broken, and then the
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divorce is granted. All right. Well, recently, and this has
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been going on for some time too. I mean, this
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has been going on, you know, really for years in
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a lot of respects, but there has been recently sort
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of a higher amount of debate over this topic where
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politicians are critiquing no fault divorce, and the critique concenter
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around the fact that this has led to the breakdown
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of the American family. Some individuals would say that this
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isn't good and that party should should work harder to
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save their marriage, and that marriage is really a covenant
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and it shouldn't be you know, dissolved absent some sort
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of fault. Okay, And there's been some politicians that have
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really come out and made comments along these lines. And again,
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I'm not taking signs of the debate. I'm just trying
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to give you the background, but Vice President Jadie Vance
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has made some comments along the lines of being skeptical
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about no fault divorce. Speaker Mike Johnson has made some
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statements in Missouri where I reside. Senator Josh Hawley has
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made some comments critical of laws that make it easier
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for parties to divorce. And again, you know, they can
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all defend their own comments in terms of how far
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you know they'd be willing to go there. Somebody just
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say they're just generally expressing skepticism. They're not really advocating
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changing the laws. Obviously, Others in political circles take their
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comments more from the perspective of, oh, my goodness, they
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might try to change no fault divorce and take it away.
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And again, I don't know what these politicians true motives are,
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true desires are, but they've just made comments sort of
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skeptical of no fault divorce, at least based on what
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I've read, And then others have been really critical about it. Now,
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you know, President Trump has been divorced twice in his lifetime.
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He hasn't come out in favor of abolishing no fault divorce,
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at least as far as I know, And then know
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as well, divorce laws or state laws. So the federal
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government would seemingly have no ability to change state laws
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on this topic, but in theory, states across the country could.
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So if states past laws abolishing no fault divorce and
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governors in particular states sign that, then in theory there
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could be changes in terms of how divorce takes place
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in the United States. Okay, so you know, really the
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next question here is should no fault divorce be abolished?
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And again, in this podcast today, I'm not going to
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take sides. This is for the listeners to decide where
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they're coming from here on this topic. But what I
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want to do is just give you some of the
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reasons against abolishing no fault divorce, give you some of
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the reasons for abolishing it, and then in terms of
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this podcast, you all decide where you come down on
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this debate. And certainly you could listen to a lot
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of other podcasts out there on the topic or read
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other articles on it and get more information. Maybe there's
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arguments for and against that I'm not going to reference today,
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but I'm going to reference some of the big ones
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I've heard. Okay, So, in terms of the arguments against
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getting rid of no fault divorce. You know, one of
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the most common arguments are this, which is, look, courts
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are backed up already. To get divorced, even in a
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no fault system, it could take parties many months, sometimes
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more than a year, and a lot of the listeners
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might say, well, why does it take so long to
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get divorced? Well, look, not enough judges and a lot
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of localities, a lot of parties backing up the court system,
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and then on top of that, in order to get divorced,
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it's not as simple as both parties wanting a divorce.
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Parties have to agree on the terms of the divorce
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in order to get divorced in most states. Now, some
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states might bifurcate where they allow the divorce and then
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they deal with the disposition later, but in most states,
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from my experience, that's not the case. So to get divorced,
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parties have to agree on how they're going to divide
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all their marital property and debt. If they have kids,
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they're going to have to agree on child custody. They'll
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have to agree on child support, they have to agree
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on spousal maintenance, and then they have to agree who's
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paying what in terms of attorney fees, Does each party
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pay their own does one party pay the others or
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contribute to the cost of the others in the disposition?
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These details or what can cause a lot of parties
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to get hung up. They can't agree on the details.
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They might even agree on seventy eighty percent of it,
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but maybe twenty thirty percent of it, maybe even ten
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percent of it, they can't agree on, and it hangs
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up the entire divorce itself. Okay, So if you add
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fault into the equation and to get divorced you have
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to prove fault, that's going to make it even more
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difficult because nobody's going to want to admit. I shouldn't
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say nobody, but most parties are not going to want
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to fall on the sword and say, yeah, we're getting divorced.
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It's all my fault. I was the bad one, right,
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So to get parties divorced, what that's going to require
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is a hearing in most instances, where parties are airing
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their dirty laundry, their finger pointing at each other saying
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it's your fault, No, it's your fault, and they're going
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to go through all the facts, all the circumstances, and
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then in order to grant a divorce, a judge has
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to find somebody at fault. Maybe that judge finds both
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of them at fault, but somebody's got to be at fault.
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If no faultult divorce goes away, And when you think
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about it, this is really going to back up the
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court system even more. It's going to cause cases to
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become enormously more expensive. Is a divorced lawyer, family lawyer.
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I think the lawyers are going to make more money
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out of the system because I mean, right now, you
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don't have to prove fault. But if you've got to
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prove fault, then the lawyers are going to have to
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put out evidence, They're going to have to do discoveries, default,
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they're going to have to bring in witnesses is the fault.
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And that's going to result in a longer divorce process.
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Lawyers are making more money, more dirty laundry being aired,
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probably harder feelings between the part. Okay, so this would
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be a major negative in terms of doing away with
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no fault divorce. Okay, here's argument number two that I've
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heard is this is, if you've got to prove fault
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to get divorced. And if you're want somebody who wants
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to get divorced, it almost incentivizes you to commit fault. Okay,
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So let's say you want a divorce, but you've never
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done anything wrong that would be marital fault. Well, go
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out and have an affair, now you can get divorced.
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Go move out, abandon your spouse. Now you can get divorced. Okay,
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you want to get divorced, Now say some really nasty
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things that could be mental cruelty. Now you can get divorced.
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So again, the argument is, is it really encourages people
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to behave badly in order to get that divorce, which is,
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you know, a little bit on savory. Is this what
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we want? Do we want to encourage people to do
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bad deeds to get divorced. Okay, this would be another
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argument against doing away with no fault divorce. Okay. Another
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very common argument that I've heard is it regards domestic
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violence victims. Okay, so somebody who's a domestic violence victim,
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let's say they want to get divorced. In order to
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get divorced, they're going to have to prove fault. They're
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going to have to prove the domestic violence occurred and whatnot.
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That can be very hard on a domestic violence victim.
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Right to go into court face the person who's committed
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violent acts upon them, testified to it, put evidence on
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as to it. That could be very psychologically harming. And
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the argument is that a lot of individuals who are
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domestic violence victims, they'll stay married, and they'll be very unhappy,
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but they'll stay married because they simply don't want to
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face down the perpetrator of the bad acts on them
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in a court room. Right, It's very difficult, it's very hard.
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So now we're sort of forcing domestic violence victims to
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stay married to the person who's abusing them. And do
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we really want that? And of course, you know, I
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mean domestic violence could be female to male, and the
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political circles, the debate is more is that this is
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bad for women, that more commonly the victim of domestic
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violence is the women. So now we're making women who
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are abused stay married to the person who's abusing them,
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and that this is very bad. Okay, So these are
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three arguments against getting rid of no fault divorce. Okay,
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in terms of the arguments for getting rid of it,
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and going back to pre nineteen sixty nine days. Okay,
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the arguments are this, at least the ones I've heard that, Look,
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kids grow up in broken homes, parents are getting divorced.
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This isn't good, and it's better if kids have two parents.
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And we've made divorce way too easy. And now we've
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got so many kids in society grown up and broken homes,
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and this isn't good. So let's make it harder for
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people to get divorced. That way, kids grow up with
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two parents. Okay, that's the argument again. You know, obviously
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others would take issue with that argument and say, is
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this what we want? Do we want to force people
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to stay married when they're unhappy, But in some circles
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people would say, in essence, yeah, people should work it out.
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You know, you edit a covenant to get married, and
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happinesses and everything. At the end of the day, you
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owe it to the kids to stay married. Okay, again,
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I'm just giving you the arguments. Another argument is this,
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which is, look, parties should be required to tend counseling
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and maybe live separately for a very long period of
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time before getting divorced, like in some jurisdictions, very very
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short separation requirements right, very short waiting periods, and so
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you know, some people would argue, okay, maybe we keep
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divorce no fault, but let's make people be separated for
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a long time like I you know, you hear some
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folks talking like two years people should be separated before
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divorce should be granted. Okay, let's give people more time
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to save their marriage, reconcile, and let's not have these
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waiting periods and separation periods be so short. Okay, you know,
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so that as another really common argument in terms of
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required counseling and extended separation periods. I know some states
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have longer separation periods than others too, by the way, already,
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and then again some would argue, you know, just generally
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no fault divorce ought to go away as a whole.
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It's just bad when you get married. It should be
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for life to covenant. You shouldn't be able to break
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that covenant absent fault. And of course people get into
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religious views and they cite those and say absent fault.
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You know, court should make people stay married. Okay, again,
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I'm not trying to take sides here, I'm trying to
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get both sides of the equation, you know, let you
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let you know the argument's foreign against it. Certainly. As
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a follow up to this episode today, you can listen
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to other podcasts, do more research, get other perspectives on
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this topic. But it's definitely an interesting one and one
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that you see out there more and more today with
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folks really take an issue with the concept of no
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fault divorce. All right, there's a follow up to the
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episode today. Go on over to Familawheadquarters dot com read
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the article dated February eighteenth, twenty twenty five titled should
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no fault divorce end? This will give you more information
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on this topic. Thanks for tuning in today, Stay tuned
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for our next episode coming up on Family Law Talk.
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Thank you very much.
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Speaker 1: Thank you for listening to Family Law Talk with Kirk Stangy.
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