The first state to pass a no-fault divorce law was California when Governor Ronald Reagan signed the bill into law in 1969. Fifty years later, every state has passed a no-fault divorce law. This has made it easier for people who want to get out of their marriages to do so, especially when they may have stayed due to any actions that could have put them at fault in their divorce.
Studies have shown that these laws have increased the divorce rate by varying percentages in different states at first, but for the past two or three decades, the divorce rate has been declining. No-fault divorce takes the premise that anyone can sue for divorce for causes of irreconcilable differences, incompatibility, or the irremediable breakdown of the union.
In no-fault divorce, when only one of the two parties in a marriage needs to seek divorce, there’s no recourse for a partner who wants to tough out the marriage. Ironically enough, suing for divorce on the grounds of irreconcilable differences is proven by the fact that one of the parties wants the divorce while the other doesn’t.
The 14th Amendment Doesn’t Apply
No-fault divorce is a unique situation where the 14th Amendment doesn’t apply. The amendment guarantees that both sides in a dispute have the right to be heard. It also prohibits losing a home or property without due process of law. Unfortunately, these protections don’t apply in no-fault divorce cases.
Spouses have no rights to make their cases for preserving the marriage. The defendant has no right to cross-examine witnesses, but at the same time, the plaintiff doesn’t need any proof. However, the defendant can challenge the no-fault case by filing a fault-based petition for divorce based on the grounds of adultery, cruelty, or desertion.
When that happens, the other party enjoys all the legal protections that are standard in a court case. The primary reasons for filing a countersuit include receiving a larger settlement, winning sole custody of minor children, or limiting visitation rights.
Different Laws for Different States
Unfortunately, the laws vary by state. The California divorce process takes at least six months because of a mandated waiting period to cool off and determine if divorce is really wanted. According to courts.ca.gov, the waiting period gives the couple time to negotiate finances, custody issues, spousal support, etc.
California frequently uses divorce arbitration with a skilled negotiator to determine what’s best for the children and both spouses. Litigation can prove expensive, but a divorce mediator can avoid many court-related expenses and prolonged legal wrangling. Arbitration is the next step when a mediator doesn’t work.
In California, arbitration binds both parties in a divorce case. The process is less formal than a court case but more formal than using a divorce mediator. The sessions are held behind closed doors, and the public is not allowed access. There are no records of the proceedings, which are held in strict confidentiality.
You and your spouse can choose an arbitrator that you both trust to be fair and impartial. You can also choose an expert in child custody matters, taxation, real estate, division of assets, etc.
Getting Legal Advice and Representation
No-fault divorce sounds simple and practical, but there are many issues to negotiate like spousal support, child support, division of marital assets, child custody and visitation rights. It’s important to hire an experienced attorney who can give you possible free divorce consultation to protect your interests regardless of whether you’re filing for no-fault or fault-based divorce.
The right attorney can advise you on what makes the most sense for you financially and personally. If faced with a no-fault divorce action, you might choose to file a fault-based countersuit to safeguard your rights by proving fault. In a no-fault divorce, you need a lawyer to represent your financial and child-raising interests.
