No-fault divorce is how lawyers refer to a divorce without “legal grounds.” States that do not have no-fault divorce require that “grounds” or a specific legal basis be proven as to why a divorce should be allowed and granted. Most states in the United States previously had divorce laws on the books that required either or both parties to present evidence to prove the existence of a specific legal basis to justify the granting of the divorce requested. Prior to the advent of no-fault divorce laws, the Courts would frequently deny the request for divorce and require the parties to stay married.
Divorce has been a complex and emotionally charged aspect of interpersonal relationships and human interaction throughout history. Traditional fault-based divorce systems often required individuals to prove marital misconduct, such as adultery, in order to obtain a divorce. The emergence of no-fault divorce represents a significant shift in society’s approach to divorce, specifically towards individual autonomy and personal freedom.
The Origins of No-Fault Divorce
Historical Context
The concept of no-fault divorce emerged in response to the limitations and flaws of fault-based divorce systems. Before the advent of no-fault divorce, couples filing a divorce petition faced a burdensome legal process, often involving lengthy court battles and the airing of personal grievances in a public forum. No-fault means that neither party is required to prove any wrongdoing or that any specific reason for divorce exists. The historical context of no-fault divorce reflects a broader societal shift, especially with respect to a woman’s right not to be legally trapped in a marriage.
The First Wave: California’s Groundbreaking Legislation
California led the way in 1970 by becoming the first state in the United States to enact no-fault divorce laws. This groundbreaking legislation allowed couples to divorce without establishing fault, citing irreconcilable differences as the sole grounds for dissolution. No-fault divorce was revolutionary at the time, because the new scheme set the stage in place for a paradigm shift. The result was the reconsideration and modernization of divorce laws and procedures nationwide.
Evolution of No-Fault Divorce Laws
No Fault Divorces in Illinois and Wisconsin
By the late 20th century, the majority of states in the U.S. had transitioned to no-fault divorce, recognizing the benefits of a more streamlined and less adversarial process. This allowed the Court to address the real issues that mattered and allowed for more opportunity for more amicable resolutions.
Illinois adopted no-fault divorce legislation on January 1, 2016. The introduction of no-fault divorce laws in Illinois marked a significant departure from the previous fault-based system that required parties to prove specific grounds for the dissolution of marriage in order for the divorce to be allowed. Now, the requirement of “legal grounds” for divorce have been reduced to a formality. The result is a system of laws that aligned more with the evolving understanding of marital relationships. Divorce petitions in Illinois now cite “irreconcilable differences” as the only grounds for divorce, now that neither party is required to prove fault. Previously, infidelity was frequently used as the legal basis and cited by the party filing the petition for divorce. While infidelity still often is the reason for the breakdown in the marriage, it can no longer serve as the legal reason.
Wisconsin adopted no-fault divorce legislation in 1977. The introduction of no-fault divorce laws in Wisconsin also marked a departure from the traditional fault-based divorce system. This legal change allowed couples in Wisconsin to seek a divorce without having to first prove specific fault grounds. This appropriately allowed for the issues tangential to the dissolution itself to become the primary focus of the Courts.
Legal Frameworks and Variations
While the basic premise of no-fault divorce remains consistent, variations in legal frameworks exist across jurisdictions. Some states require a period of separation before filing for no-fault divorce, such as a period of six months in Illinois. Note that most parties are allowed to waive six month separation period that is otherwise “required” by Illinois law, allowing couples to dissolve their marriage without a waiting period. Wisconsin, but not Illinois, requires a waiting period after a divorce is granted before the divorced party can get married again. While certain jurisdictions have stricter verbiage then others, nearly every state in the U.S. now applies a variation of no-fault divorce. Establishing fault or proving misconduct is not necessary in either contested divorce or uncontested divorce.
Contested Divorce
If either party to the case “contests” the divorce, what that refers to is the issues that are ancillary to the dissolution itself. This includes financial issues and child related issues. Whether “fault” exists in divorce cases is completely independent from the Court’s ability to address issues regarding child custody or asset distribution. As such, adultery or domestic violence generally has no affect on the property division that occurs between the parties in a divorce case. Similarly, a party contesting the dissolution itself might file a Motion for Reconciliation or request the Court to order that the parties to attend counseling or try again, but the Court no longer has any legal authority to grant a motion of that nature.
Although family law is now governed by a system of laws known as “no-fault divorce,” this does not mean that a party cannot be deemed “at fault” for other issues. “No fault” simply means that neither party is required to prove that a reason for divorce exists, and the marriage can be dissolved without proof showing “legal grounds.” However, both parties can be still at fault for a variety of issues related to a divorce, such as failing to comply with Court Orders, hiding assets or being otherwise untruthful, or dissipating marital assets outside the course of ordinary day to day living.
Covenant Marriage
No fault divorces are not an option in a covenant marriage, which is a type of marriage contract that only a few jurisdictions in the United States permit. This arrangement is similar to the days of old where “at fault” divorces were the only divorces allowed to be granted. In a covenant marriage, couples agree to follow specific requirements and restrictions, and obtaining a divorce becomes more challenging. The idea behind covenant marriage is that it emphasizes the commitment of the marriage and promotes and strengthens marital bonds.
Key features of a covenant marriage often include:
Pre-marital Counseling: Couples entering into a covenant marriage may be required to undergo pre-marital counseling to discuss expectations, values, and potential challenges in the marriage.
Limited Grounds for Divorce: Covenant marriages often have more restrictive grounds for divorce compared to standard marriages. Commonly accepted grounds for divorce in a covenant marriage may include adultery, abuse, imprisonment, and repeated and extreme physical or mental cruelty.
Counseling Requirement: In many instances, couples seeking a divorce in a covenant marriage may be required to undergo counseling before the divorce is granted.
Not all states offer covenant marriages, and the laws and requirements associated with covenant marriages can vary. Individuals interested in covenant marriages should check the most recent legal information in their respective states. Illinois does not allow for covenant marriages.
Legal Reforms and Society Considerations
Ongoing discussions about legal reforms and policy considerations help shape the landscape of divorce law. Balancing the need for individual freedom is necessary for the evolving legal frameworks and to address the complexities of modern relationships. Challenging traditional notions of fault and blame in the dissolution of marriages is essential in the efforts to correct the culture of victim blaming that is prevalent in society and the legal system. As we continue to grapple with the legal, social, and emotional dimensions of divorce, understanding the origins of no-fault divorce helps us apply an informed approach to this complex aspect of human relationships.
Illinois Divorce Lawyer Consultation
If you need representation in an Illinois or Wisconsin marriage dissolution and you’d like to schedule a consultation, please reach out to us by phone or text at (815) 200-8802. Attorney Townsend and the staff of our law firm can help you find a new path forward for your family.