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A No-Fault Divorce?

Clients seeking our matrimonial law services often tell us they want a “no-fault” divorce … but just what is a “no-fault” divorce?

In Virginia a “no-fault” divorce is one based on voluntary separation: that is, where the parties have lived separate and apart, uninterruptedly, and without any marital relations, for one year. (Six months will suffice if there are no minor children and the parties have a written separation agreement.) At least one of the spouses must have intended that the separation be a permanent one. Cases that begin with a “fault” ground of divorce (such as adultery, desertion, and/or cruelty) are frequently settled midstream, with the “fault” divorce ground being amended to “no-fault” at the time the final decree is entered.

A “no-fault” divorce is the easiest and least expensive to obtain, and requires no public revelations regarding the reasons for the breakdown of the marriage. A single hearing to establish the “grounds” for such a divorce is usually held in the relative privacy of a lawyer’s office, with one or both parties and a single witness present; it frequently lasts no more than about ten minutes—less time than it takes to get a marriage license. Opting for “no-fault” almost always makes sense where (1) there are no disputes involving custody, visitation or support of minor children; and (2) the parties agree on the allocation of marital assets and debts. Irrespective of such considerations, where no other “fault” grounds for divorce are justified by the facts, voluntary separation will be the only legally tenable basis for a divorce complaint.

Generally, courts are getting away from viewing “fault” in a marriage as a reason to punish a “guilty” spouse. To a great extent, determinations on division of marital assets, allocation of debts, child custody/support/visitation, and spousal support (“alimony”) are supposed to be made independent of any question of which spouse may have been at “fault” for the breakup of the marriage. Nonetheless, there will be times when assertion of “fault” grounds is appropriate and necessary to advance the legitimate interests of an estranged spouse.

Furthermore, even if “fault” is not an issue, the spouses may not see eye-to-eye on a fair apportionment of property acquired before, during and after separation. There may be disputes about when property was acquired, who contributed it, its value, etc. The parties may differ over child support, alimony, or child custody issues. A no-fault divorce is not necessarily an uncontested case.

In any divorce proceeding, “no-fault” or not, when the parties are unable to agree on an “equitable distribution” of marital assets, the court may consider the “factors and circumstances leading to the dissolution of the marriage,” and the parties’ respective contributions to the well-being of the family. Questions concerning who brought what to the marriage; the valuation of assets; the classification of property as “marital,” “separate,” or “part-marital;” and which of the spouses, if either, was guilty of “dissipating” martial assets to the detriment of the other spouse are relevant to a fair division of marital assets and liabilities. Thus, the inconvenience, expense, and stress of contested litigation is an ever-present possibility when any important outstanding issue between the spouses remains unresolved, whether or not the ground for divorce is based on allegations of marital “fault.”

Even in the context of a “no-fault” divorce, certain issues, to whatever extent applicable to the individual case, have to be analyzed, evaluated, and appropriately resolved:

  • Is either party entitled to either lump sum or periodic support from the other? Over what period of time should support be payable? If support need not be awarded now, should a spouse leave “open” the question of whether support might be awarded later under circumstances where the party requesting it might need it and the party against whom the award is sought would be able to pay it?
  • Which parent should have custody of the children? Should the parents share custody? What provisions should be made regarding a noncustodial parent’s visitation rights?
  • What does Virginia law provide in terms of the amount of child support that should be awarded? Are special adjustments to the statutory “guideline” support amounts justified? What about tuition and other costs for private school and/or college, or extraordinary medical or other expenses for the children?
  • How should the property be divided up? Can and should it be sold and the proceeds divided, or should certain property be transferred between the spouses? What property does the law consider as the spouse’s “separate” property? What property is “marital” or “part-marital”?
  • Who will be responsible for debts, mortgages, and accounts?
  • What are the tax consequences associated with the dissolution of the marriage, and who will bear the brunt of them? How can support and property division be structured to avoid unnecessary tax liabilities?
  • What provisions should be made respecting retirement funds and future income? Are life insurance benefits desirable to protect spouse(s) and/or dependents? Who will provide for health insurance coverage?

Considering the number of unresolved issues that might apply to any particular case, it is rarely possible to be certain at the outset that a “no-fault” divorce will be appropriate. Failing to address all important issues fully at the beginning, may seem like a good way to avoid unpleasantness; but it could lead to results which would not be in a client’s best interests. The level of stress and adversity involved in becoming separated and divorced is never entirely within one spouse’s control: it depends, equally as well, on the attitude and positions adopted by the estranged spouse and his/her attorney.

We at RRMDK believe that prompt, fair and reasonable resolution of your family law case, in a manner that doesn’t leave you broke, and which spares you, your friends, your loved-ones, and even your spouse unnecessary psychological scars, is in your best interests. We will explore with you fully the pros and cons of introducing “fault” and/or contested matters into your divorce case either as a ground for divorce or in some other context. We will remind you that, irrespective of your own wishes, your spouse may attempt to gain an advantage on one or more issues by threatening or maintaining positions—in or out of court—which remove your case from what might be considered by you to be a “no-fault” divorce. When the facts have been sifted, the circumstances assessed, and the various choices and options fully explored, we will work together with you to protect your legitimate interests, make sound decisions about your case, and bring the matter to a fair and final resolution.