What does a "No Fault" divorce mean?December 19, 2016
There are two types of divorces, one of the no-fault divorce, and the second one is a fault divorce. The no-fault divorce is usually an agreed statement between both the parties, who are ready to share the blame. There is a fundamental difference between the no-fault divorce or a fault divorce.
What is a no fault divorce?
A no fault divorce is when the partner filing for a divorce, does not have to submit any reason or justification for the divorce. In a no-fault divorce at times both parties are at an agreement, and the process is a smooth one. In a no fault divorce, one of the spouses has to give a reason that will be honored and understood by the state to grant it. The most common reason given in a no-fault divorce is “irreconcilable difference” which means they have tried to make their marriage work, but were unable to make their marriage work. Another common reason given is “irreparable breakdown of the marriage” which basically means the same thing. These are just fancy terms stating that the couple have moved on from the relationship, and there is nothing left to fix. During a no fault divorce, if the spouse objects to the divorce, this is seen as an irreconcilable difference by the court; and does not do the objecting spouse any good. All states recognize a no fault divorce, but there are a few states that that set down rules for such a divorce to take place. For instance, a few states ask the couple to go through a 12 month separation period.
What is the 12-month separation?
In order to ensure that you are granted a no fault divorce, the court can order the couple to spend 12 months apart. They will be married during this time period, but will live as a separate couple. If they are successful in living apart for a year, which means they cannot have a sexual relationship, nor can they live in the same space the case will move forward. This option can be taken on even before the couple has agreed to a divorce, as it will just make the case stronger. There is a way to get this period waived, and that is by having mutual consent.
What is mutual consent?
Mutual consent is when the couple believes that it is best for them to separate, and in such a case the court might grant an absolute divorce. This means they will not have to wait for 12 months to get a divorce. But there are a few conditions set by the court that need to be followed if you are looking for a no fault divorce with a mutual consent.
The separation has to be voluntary, and not something caused by extenuating circumstances. For instance, if your spouse is in the military or is in jail; this is not voluntary separation. At the same time, just because you are sleeping in different bedrooms in the same house, does not count as separation either. The separation is only considered when the couple lives in separate homes, and lead separate lives.
The separation period has to last for 365 days consistently, not with gaps in the middle. Keep in mind that the voluntary separation does not necessarily mean both parties agrees to the situation. It means that one party has left voluntarily, and wishes to be separate. If you have been separated for a year, you can apply for a no fault divorce, and it will be granted; even if the other party does not agree.
What are the requirements for a no fault divorce?
For a no fault divorce, you have to meet the requirements of separation. Once you have met that requirement, you are required to provide the court with additional requirements; which will help make the divorce process faster and simpler.
What are the requirements for residency?
For a no fault divorce process, you and your partner have to meet the requirements of residency. These requirements will depend on the state you are living in, and you should consult a lawyer for this. In most cases there are two ways to meet these requirements, one way is to prove that you or your partner have lived in the same state for a year before filing for a divorce. The second way is by proving that both you and your partner have been living in the same state for the past 3 months.
What are the requirements of marital property and debt?
Once you have met the first requirement, you will have to meet the requirements of marital property and marital debt. Marital property refers to all the assets that are acquired during the time period you were married. These will include all your personal belongings, and the wages you have earned. Similarly, marriage debt refers to debt that was accrued during the time period in which you were married.
If you do not have any marital property, or are free from marital debt; then you can file for a no fault divorce. However, if you do have marital property and marital debt, you will only be guaranteed a no fault divorce if both parties agree to how the assets and the debt will be divided and present the court with a signed copy of the document.
What are the requirements of Child Custody and Support?
Similarly, like the requirements for marital property and marital debt, when the matter moves on to child custody and support; both parties need to be in sync. Only, when both parties are in agreement on the matter, will the court go ahead with the no fault divorce. So before you file for a no fault divorce make sure you and your spouse have discussed child custody and support, and have reached a decision both of you agree to. These requirements should be settled keeping in mind the state laws towards children’s rights. You have to make sure that the child will be cared for properly, and there will be no compromises that the child will have to make. If there are no expected children, or a minor child, then this requirement does not have to be fulfilled. Which means you can easily skip this part, and file for a no fault divorce; keeping in mind that you will be required to fill in the remaining documents, as per your lawyer’s recommendation.