Many people have misconceptions about no-fault divorce. To understand what no-fault divorce is, it is helpful to understand the history of the divorce process. Prior to 1970, people had to give a reason for their divorce, which they had to prove in court. Some acceptable reasons for a divorce included:
- Cruelty (inflicting unnecessary physical or emotional pain)
- Spouse who is in prison
- Spouse who is unable to have sexual intercourse
Prior to 1970, would-be divorcées had to provide the court with evidence that one of these things was going on (for example, by hiring an investigator to follow a cheating spouse). If the spouse didn’t want a divorce, they could challenge that evidence in court. Often, there would be a lengthy dispute about whether the divorce could take place before the division of assets, and child custody could even be discussed.
But in 1970, California passed no-fault divorce laws, which said that couples could split up due to irreconcilable differences. These laws made it possible for couples to divorce simply because the marriage is not working, without having to prove whose fault it is. Today, every state in the US has no-fault divorce laws, but it took forty years for that to happen. In 2010, New York became the last state to adopt no-fault divorce.
In Episode 93 of the Divorce and Your Money Show, Larry Sarezky discussed some common misconceptions about divorce, including no-fault divorce. One major misconception people have about no-fault divorce is that fault will never come into play. However, every state is different. Fault can still affect the outcome of your divorce, such as how assets are divided or how child custody is determined.
For example, Texas is a community-asset state, so assets generally get split 50/50. However, if there is fault because one spouse acted poorly, assets could be split 60/40 or 70/30. Your behavior (or that of your spouse) could also determine how child custody is split.
Ask your attorney what role fault plays in your state. Just because there are no-fault divorce laws, fault is still relevant in your divorce. If you suspect that fault could be found (on either your spouse’s part or your own), discuss it with your attorney. The ramifications may surprise you.
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