By Molly Murphy
Attorney, Cordell & Cordell
Every jurisdiction in the United States has different standards and reasons that a party may file for dissolution of marriage. No-fault divorce describes any divorce where the spouse suing for divorce does not have to prove that the other spouse did something wrong. All states allow divorces regardless of who is at fault.
So what are the pros and cons of no-fault divorce?
You can file for divorce at any time and for no stated reason if you meet the residency requirements for divorce. All a party has to do is allege that the marriage is irretrievably broken down and cannot be preserved. As a practical matter, if one party testifies to these two things, the dissolution will be granted. The simple testimony on those two points of one party is enough to support a finding and dissolve the marriage.
In order to file for divorce you must meet the residency requirements though. For example, in Missouri, where I practice either you or your spouse must have been a resident of the state of Missouri, or a member of the armed services who has been stationed in the state of Missouri, for 90 days immediately before you file the papers. This website also has a list of most states’ residency requirements.
Further, if you and your spouse have minor children, the court must have jurisdiction over them. Generally this means your children must have lived in Missouri – again using an example of the state I practice in - for at least six months and currently live in Missouri, or have lived in Missouri within six months of filing. This petition can be filed at any time, including before or after the parties have separated or even constructively separated (they are still living in the same residence).
A fault state allows the following traditional fault grounds, such as cruelty (inflicting unnecessary emotional or physical pain). This is the most frequently used ground. Other grounds to obtain a fault divorce are adultery, desertion for a specified length of time, confinement in prison for a set number of years, and physical inability to engage in sexual intercourse, if it was not disclosed before marriage.
What are the pros of living in a no-fault state? One of the main attractions of this is your ability to file for a divorce at any time (as long as you meet the residency requirement). You do not have to wait for a certain amount of time, or state a specific reason, such as adultery, for said divorce. The court cannot take these into account in a no-fault divorce state, as all property is divided into equal proportions. However, the Judge may slant the property settlement 60/40 to the party who has been harmed, but this is only in specific cases.
Your divorce can be finalized once at least 30 days have elapsed since filing the petition, at least in Missouri. Your divorce is finalized during a brief uncontested divorce hearing. Both spouses are typically required to attend. If the parties hire an attorney and sign affidavits to the divorce, they are not required to attend court.
Another pro of a no-fault divorce is that in some fault states, a party can successfully argue against a divorce though they need to convince the Judge that they are not at fault. There are several grounds a party can use, and each requires a large amount of witnesses and evidence, but some divorces have been denied.
What are the cons? A no-fault jurisdiction makes it very easy for parties to divorce. This could be seen as encouraging parties to divorce instead of following a timeline or stating a reason. Said time lines and reasons force parties to face their marriage and what has happened in it. This could result in parties attempting counseling or giving their marriage another try.
Further, if a party has committed bad acts, such as abandoning their spouse or committing marital misconduct usually in the form of adultery, then the Court can take that into account when entering its Order. Marital misconduct can be taken into account in child custody, child support, property distribution and the length of time it takes the parties to become divorced.
There are many more pros and cons to a no-fault state, but these are the comments I hear the most from my clients. Please consult an attorney to find out what kind of jurisdiction you live in. Cordell & Cordell has offices in 16 states.
Margaret “Molly” P. Murphy is an Associate Attorney in the Arnold, Missouri, office of Cordell & Cordell where she practices exclusively in the area of domestic relations. Ms. Murphy is admitted to practice law in the state of Missouri. Ms. Murphy was born and raised in St. Louis. She received her B.A. in Political Science and English Language and Literature in 1998 from the University of Tulsa where she graduated magna cum laude. Ms. Murphy received her Juris Doctor from the University of Missouri-Columbia in 2001.