Today in 1969: California passes the first no-fault divorce law in the U.S.

September 4, 2015

Today in Legal HistoryAs just about any family law attorney would tell you, divorces are nasty business. The parties are often on the worst terms that they’ve been, and it’s often a struggle to just get your client to stop focusing on why he or she is so upset with the soon-to-be ex-spouse so that the actual issues of the case can be addressed.

What if, however, your client’s complaints about her spouse were the actual issues of the case? This, of course, is referring to what’s known as “fault divorce,” which is still an option in 33 states today. However, 46 years ago, it was the only option for divorce. That all changed on September 4, 1969, when California Governor Ronald Reagan signed the Family Law Act of 1969 into law, thereby abolishing the fault grounds for divorce, replacing it only with no-fault.

The difference between the two is significant: with no-fault divorce, as long as one spouse wants a divorce, there’s little the other spouse can do to stop it. And spousal actions have little bearing on the division of property in the divorce (although it may affect child custody determinations). In fault divorce cases, on the other hand, one spouse essentially “sues” the other, claiming that the defending spouse committed one or more acts constituting “grounds” for divorce. Without alleging and proving these grounds, such as cruelty, adultery, and abandonment, a divorce could not be obtained. And if proven, the acts of each spouse that were committed during the marriage are taken into account by the court in determining division of property and alimony.

Furthermore, the defending spouse could raise defenses that could successfully defeat the divorce legal action. These defenses include condonation, where the spouses continue their marital relationship after one commits an act that constitutes grounds for divorce and the other spouse has full knowledge of the act; and connivance, where one spouse consents to an act committed by the other spouse that would otherwise amount to grounds for divorce. Interestingly enough, another available defense, recrimination, could successfully defeat a divorce action with the defending spouse showing that the spouse bringing the divorce action has committed one or more acts constituting grounds for divorce. In other words, a showing that both parties are at fault may be an indication to the court that they should stay married.

While the abolishment of such a system and the corresponding adoption of the no-fault system in California half a century ago may be understandable to say the least, keep in mind that up until the passage of the Family Law Act, a fault action was the only way to get divorced in the U.S. As such, it’s not hard to imagine that, where two couples wanted a divorce but neither had committed any acts constituting fault grounds, that one or both parties would lie in order to secure a divorce. In fact, such occurrences had become so common that they were cited as part of the justification for switching to a no-fault system.

After California’s switch, every state followed suit (if not abolishing fault divorce, at least with adding no-fault as an option), with New York being the last state to adopt a no-fault system in 2010.

Still, no-fault divorce has its detractors, with some claiming that it is responsible for the rise in divorce rates over the past several decades.   However, the policy wisdom of forcing spouses to stay legally married against the wishes of one or both of them is questionable at best, and accordingly has failed to attract many supporters.

Finally, most attorneys would agree that no-fault divorces make for much less stressful cases by and large, and very likely contribute toward a more amicable relationship between the two spouses after the divorce…at least, whenever that’s possible.