Though No Fault Divorce is helpful for getting easy divorce from your spouse, it has got many disadvantages and inherent weaknesses.
No Fault Divorce in US: Pros and Cons
Gone are the days when marriage was considered as a sacred covenant and happy union between two persons and treating divorce as painful separation between married couple. No doubt marriage has lost its pre-eminence and ‘people today look at marriage as an extension of dating.’(Allen Parkman, University of New Mexico and the author of No Fault Divorce).Hence, relegating marriage to an empty formality, divorce has gained an upper hand and undue importance in the US society. It is more appropriate to explain in the words of Family court Judge Rendell Hekman: “ It is easier to divorce my wife of 26 years than to fire some one I hired one week ago.The person I hire has more legal clout than my wife of 26 years.That’s wrong.”
History of No Fault Divorce Law in US:
In 1930s, getting divorced from your spouse in US was quite difficult and protracted since you have to prove that your spouse was at fault on any one of the available legal grounds. In 1953, it was the State of Oklahoma that passed the first ‘No Fault Divorce Law’ enabling a married person to part his or her ways quite easily. However, ‘No Fault Divorce’ received a great impetus when the State of California passed the ‘Family Law Act’ in 1969 and ‘No Fault Divorce Law’ came into force from the month of January,1970.It was former US President Ronald Reagan, who gave his accent to the bill as the Governor of the State. However, later on he rued for it as the greatest mistake that he committed in his political career.
Following California, all other US states except the States of New York and South Dakota enacted their own ‘No Fault Divorce Law.’ South Dakota passed its own ‘No Fault Divorce Law’ in 1985.New York remained stubborn until June, 2010.On 1 July, 2010, it passed its own ‘No Fault Divorce Law’ and on 13, August, 2010, New York added ‘No Fault’ as an additional ground for getting divorce provided there is ‘irreconcilable differences’ for a period of at least six months and it came into force from 12, October. 2010.
What is ‘No Fault Divorce’?
‘No Fault Divorce’ is the legally permitted way of getting divorce from your spouse on the only condition that you have ‘irreconcilable differences’ that have caused an irrevocable breakdown of your marriage with your spouse. In other words, being a married person, if you wish to terminate the marriage with your spouse, you can do so through ‘No Fault Divorce’, whether your spouse agree or do not agree.
Generally in most of the states ‘No Fault Divorce’ constitute the following grounds:
- There may be or may not be a separation between the married couple.
- There must be an incompatibility between the couple.
- Due to irreconcilable differences between the couple, there is an irretrievable breakdown of their marriage.
In the state where the ‘No Fault Divorce’ is in force, in any of the above grounds, neither spouse holds the other responsible which is the essence and salient feature of the ‘No Fault Divorce’. Therefore, the spouse seeking divorce has no any legal obligation to prove anything against his or her spouse nor the court is bound to adjudicate upon any specific fault issue against any person except granting divorce and connected relief.
However, ‘No Fault Divorce’ has got its own pros and cons:
- No Fault Divorce is hailed for the freedom that it provides to the seeker of divorce. It is simple and hassle free.
- A married person can seek his or her ‘No Fault Divorce’ at any time in his or her life and in the process he or she has no onus to prove anything against his or her spouse. The only legal requirement that he or she has to fulfill is the minimum residential requirement of 90 days or more as provided by the respective state law.
- It preserves the privacy of the couple seeking ‘No Fault Divorce’ In the court proceedings since no fault is ascribed to your spouse, the court will not intrude into your privacy and thereby the divorce proceedings are conducted as smoothly as possible without aggravating their relationship.
- No Fault Divorce has considerably reduced the domestic violence between couples in various states, since it paves the way for granting divorce as smoothly as possible without showing any accusing finger on any spouse. Hence no spouse is mentally disturbed or abused.
- In the No Fault Divorce proceedings, since no one is accused or found fault with, there is no reason to manufacture or cook up or fabricate any evidence against any spouse and the court is not unnecessarily burdened with any spurious evidence to investigate. In the result, the integrity of the court is maintained intact.
- Unlike the divorce proceedings of the yesteryears, No Fault Divorce proceedings reduce the time frame and financial burden between the parties seeking divorce. Naturally the court’s precious time is also saved and lesser time is spent by the court on stressful situation.
- Mostly the No Fault Divorce proceedings are uncontested and normally the desire for seeking divorce is mutual.
- Since the No Fault Divorce proceedings are conducted on the premise that the spouse from whom the divorce is sought is not at fault, there is less conflict and less emotional harm or injury caused to the couple or their children.
- No Fault Divorce reduces the heavy case loads of the family courts.
- Since No Fault Divorce is granted by the court on the premise of no fault on a spouse but not based on his or her fault, divorce settlements are based on needs of the couple, ability of a spouse to pay and contribute to the family finance rather than on fault.
- In the No Fault Divorce proceedings virtually there is no contest and mostly unilateral. In fact the court does not bother about the consent of the spouse or does not take into account even if the spouse from whom the divorce is sought is not agreeable for the divorce. Hence, it does not provide an opportunity to the other side to respond. Therefore, naturally, the courts are not impartial in granting No Fault Divorce.
- Normally in the No Fault Divorce proceedings, courts are always sympathetic towards women. Hence, the courts cast a heavy financial burden on the husbands in taking custody of their children and wives.
- No Fault Divorce undermines the society as a whole and makes the institution of marriage trivial. It encourages the people to easily back out of a marriage and once again get married quickly or frivolously. In the result they may end up in a poor choice of their new spouse. Again it may provoke a hasty divorce.
- No Fault Divorce creates a profound impact on the children of the spouse seeking divorce. “ They are at twice the risk of juvenile delinquency and more vulnerable to psychological disorders” (Columnist Maggie)
- Marriage is a covenant; from a religious point of view, it is a covenant with God; from a secular point of view, it is a covenant with the society. No Fault Divorce does away with the higher covenant of marriage.
- No Fault Divorce is generally considered bad for women. A husband in order to get a divorce through No Fault Divorce proceedings may cheat, neglect or abuse his wife and thus end up by paying a lesser amount to his spouse for her support. That was why New York had been prevaricating all these years in adding No Fault Divorce in their state.
- No Fault Divorce is inherently immoral and so divorce is inherently wrong.
- After the introduction of No Fault Divorce, divorce rate has been steadily on the increase. In 1960, (before the enactment of No Fault Divorce Law), 16 % first marriages ended up into divorce; whereas, after the introduction of No Fault Divorce, the divorce rate has increased to 40 %.
- No Fault Divorce laws have given more power to family court judges in deciding custody, splitting material assets and spousal support.
- No Fault Divorce always takes away father’s right to have custody of his children and courts mostly favors mothers.
- No Fault Divorce, being mostly unilateral, lowers the living standard of a depending wife, since she has no grounds to argue in her defense; it also lowers the living standard of the children taken into custody by their mother.
- Consequent to the introduction of No Fault Divorce, allegiance of courts system has been shifted from the institution of marriage to the system of divorce. Hence, the institution of marriage has lost its support and sanctity and the system of getting divorce has been expedited.
- In some of the states where No Fault Divorce has been introduced, for getting divorce through No Fault Divorce, you have to wait for a specific period. For example, in the state of Louisiana, a couple seeking No Fault Divorce must live separately for a period of 2 years or more as stipulated by the court. Thus, for getting a No Fault Divorce, there is a typical waiting period in some of the No Fault states.
When we consider the pros and cons of the No Fault Divorce, the cons clearly outweigh the pros, hence there is an outcry from some of the quarters of the states, to restore the sanctity of the marriage and reduce the rate of divorce. Hence Feminist Betty Freidan also repents as follows:“I think we made a mistake with No Fault Divorce” citing economic disadvantage caused to women.
4.http://findarticles.com/p/articles/all the fault of no fault/
6.http://www.edivorcepapers.com/no fault divorce