The Pros and Cons of No-Fault Divorce

By Sherri Donovan
Reprinted with author’s permission
No-fault divorce means that a couple need not prove any instances of wrongdoing or abuse in order to file for divorce in a court of law. Without the no-fault option, allegations of a statutorily defined reason, such as cruelty, abuse, adultery or abandonment, must be made and proven.
Clearly, no-fault divorce may reduce long, cutthroat court battles over who is to blame when marriages fail, resulting in lower legal fees and more time-efficient proceedings. After all, many people divorce for reasons having little to do with the traditional, codified grounds. With no fault, since it is not required that one party be accused and found fault with, there is no reason to manufacture or fabricate evidence against a spouse. The integrity of the court is left intact and divorces caused by simple incompatibility may be obtained in an honest and streamlined fashion.
Even if instances of adultery or abuse did occur, the option of filing for a no-fault divorce allows parties to avoid airing their dirty laundry in public. The parties’ privacy is respected. Litigation focuses on the needs of the parties rather than fault. Less time spent on accusations and less emphasis placed on the actions that led to the divorce keeps the parties moving forward and avoids extra aggravation of the parties’ stress and emotional turmoil. Overly burdened court dockets may also be alleviated by no fault divorce by eliminating one of the many issues to resolve.
Yet the opportunity to inform a judge of the behaviors, circumstances and facts that led to the break-up of the marriage is an important part of a divorce for many people, offering the chance for psychological processing and an opportunity to be heard and validated. It may also undercut a party’s credibility, inform a party’s child rearing capacity and affect the equitable allocation of marital resources. No fault divorce is often initiated unilaterally. An aggrieved party may fear that a court will not take into account the fact that he or she does not want to divorce, or that the court will not be able to properly consider the issues without knowledge of the facts constituting fault-based grounds. It may be further argued that no fault divorce undermines the institution of marriage itself by making it easier to exit it.
Many states that allow no fault divorce also require that custody and financial settlement be reached before divorce can be obtained. This slows the process down with the aim of achieving a fair result that will meet the family’s needs. Financial discovery, custody evaluations, forensic evaluations, interim motion papers for temporary financial support or custody provide the parties with a chance to be heard and to give the judge the full picture of the marriage. Some states, such as New York, also have laws that create a rebuttable presumption that the more monied spouse is responsible for attorney and expert fees. Together, these measures may serve provide some level of protection for financially disadvantaged spouses who did not want a divorce or who were abused or abandoned.

8 Reasons Why Society’s Views on Marriage Are Outdated

  1. Marriage is traditionally rooted in a patriarchal structure, where a woman assumed her husband’s name along with certain traditional roles within the family, e.g. housekeeping, cooking and childrearing. This is an increasingly outdated concept, particularly as same sex marriage is on the rise, more women remain in the workforce after marriage and many men assume the role of primary caregivers to a couple’s children.
  2. Marriage is also traditionally rooted in religion, yet society is increasingly secular while simultaneously encompassing a variety of religious views and cultures, and marriages and partnerships that have no roots in religious belief or culture.
  3. Marriage is a legal institution, its definition, accessibility, rights, privileges and responsibilities defined by the state. Yet what marriage means to those involved differs and committed non-married partners do not have the same recognition or rights. Many same sex couples who wish to marry still cannot, and face possible non-recognition of a valid marriage if they move to another state that does not recognize same sex marriage.
  4. Sex outside of marriage is more and more openly accepted—marriage is no longer a prerequisite to sanctioned physical relationships between consenting adults.
  5. There is an increase in cohabitation outside of marriage. Cohabitation does not necessarily lead to marriage, but rather could lead to serial monogamy or lifelong partnerships and families without marriage.
  6. More children are being born outside of marriage. Unplanned pregnancies do not necessarily lead to marriage or adoption, but rather can often lead to co-parenting by parents who cohabit or are not together. Advances in assisted reproduction technology are another major factor in the increasing number of babies born to unmarried people.
  7. Financial independence is increasingly expected from and by both genders, even after marriage and children. Many women have already established their careers before marriage and have both personal and practical reasons for maintaining these careers even after the birth of any children. Further, many couples can no longer afford to raise children on one salary–and with more and more divorces, both parties must be able to earn adequate income in order to establish and support a second household following a split.
  8. Life spans are increasing, along with our mobility and opportunities for career change. It may be increasingly unrealistic to expect commitment “until death” when we are living to age 100 and changing hometowns and careers multiple times over our lifetimes.

Sherri Donovan ESQ

Sherri Donovan & Associates PC
The Family Center
Telephone: 212-431-9076
Cell: 917-723-1163