What does an “uncontested divorce” really mean?

Historically, divorces have been frowned upon socially, and discouraged legally. During the 18th and 19th century, the court system created a complex set of criteria (elements that had to be plead and proven) in order to have a Complaint for Divorce accepted for consideration by the court.  There were five causes of action for divorce–reasons why a party could seek divorce: adultery, imprisonment for 3 years or more, cruel and inhumane treatment,  abandonment for a year or more and constructive abandonment (refusing to have conjugal relations with your spouse).  All that changed in July 2010 when the last holding-out state (New York) adopted what is now universal “uncontested divorce” statutes.

An uncontested divorce (also called a no-fault divorce) eliminates the need for a “cause”  or “fault” to get a divorce.  The new standard is “irretrievable breakdown of the marriage” or any such language, as specified in the state statute.  Cause-based divorces are still possible, but not necessary.  Effectively, if you want a divorce, you can get one. Most attorneys will use the no-fault statutes because the client is spared having to plead and prove fault (which of course would add time and cost to the proceedings); however, in some instances, such as domestic violence, fault  (cruel and inhumane treatment) is still needed.  Fault based divorce can have legal affect on the opposing party in terms of rights and privileges.

No fault divorce has not changed any of the collateral issues that are associated with divorce: custody and child support, distribution of marital assets.  In law, the marriage itself is a “res” (Latin for “a thing”).  The dissolution of the “res” can be resolved, even while the collateral issues remain and must be litigated.  When, where and how these “collateral issues” can be resolved is the subject of another blog!

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