What is a No-Fault LGBT Divorce?

Over the past century, marriage has evolved significantly. Not only has our thinking about what makes a “good” marriage evolved, but the laws that regulate the requirements, responsibilities, and benefits of marriage have also changed. One major change has been how divorce is perceived and handled, including the introduction of the “no-fault” divorce. In this post, we’ll briefly introduce the concept of no-fault divorce, where it originated, and how it impacts the LGBT community.

What is a no-fault divorce?

Simply put, a no-fault divorce means that there does not have to be a reason for the divorce. It is not necessary to prove that one partner mistreated the other, had an affair, or any other reason. Instead, at least one partner must simply claim that the relationship has “irreconcilable differences.” In other words, the couple simply does not get along. Only one person needs to claim that the marriage is irreconcilable; it does not matter whether the other person agrees or not. In most cases, it also does not matter which person filed for divorce (known in legal terms as the “petitioner”). The Court should treat both parties equally, regardless of who is the petitioner.

The origin of no-fault divorce

Historically, marriage was treated as a contract with economic ramifications. Like many other legally binding contracts, in order to terminate the contract, signatories had to prove that at least one of the parties broke the rules of the contract. In the U.S., marriage contracts could only be broken in very specific ways. For example, if one spouse had an affair, there may be grounds for a divorce. However, this meant that one person had to legally carry the blame, or the “fault” for ending the marriage, and that fault had to be proven. This was often incredibly difficult.

During the 20th century, values of what constituted a good marriage shifted dramatically, with love and companionship gaining importance. In order to remain relevant and aligned with modern social values, the legal institution of marriage evolved. As part of this evolution, in 1970 California was the first state to enact no-fault divorces, which removed the requirement of proving that one person had broken the marriage contract. This provided several benefits that aligned with the social values of the day. First, it protected the reputations of both people–no one had to shoulder the blame. Second, it allowed a safer way out of marriage, especially for victims of domestic abuse. Third, it reinforced the importance of values that treated marriage more as a loving partnership rather than an economic union.

Other states followed suit, though some opted for only partial no-fault status, where the option of placing the fault on one spouse was still available. The last state to jump on board was New York, in 2010. Currently, 17 states and the District of Columbia are fully no-fault, without an option of choosing an at-fault divorce proceeding. Other states offer multiple divorce options.

How does this affect my LGBT family?

Since Obergefell v Hodges legalized gay marriage nationwide in 2015, LGBT couples are treated essentially the same as heterosexual couples when it comes to no-fault divorce. Everyone faces the same waiting period of a minimum of 6 months, and everyone must conform to the same requirements. However, despite all the progress we’ve made for LGBT family law, bias and discrimination still exists, even in the court system, as exemplified in the recent case in Washington State where a woman was denied child custody during a divorce because of her sexual orientation. Luckily, this case was later resolved. The no-fault divorce means that fewer divorces end up in court in front of a judge. This shifts the decision making power to the individuals within the marriage, who can decide for themselves if the marriage is no longer working, rather than working to prove to a judge that one party has done something wrong. So, allowing individuals more control over this aspect of their lives means that they are less likely to face that discrimination.

Even though no-fault divorces can help simplify the divorce proceedings, they can still be quite complicated, with estate management, parenting agreements, and child support negotiations, among other issues, so many still opt to hire a divorce attorney.

Our local attorneys specialize in family law for lesbian, gay, transgender and queer families. If you’re considering hiring a Los Angeles-based attorney for divorce, contact us to set up a free consultation to see if we may be the right fit for you. We have convenient offices in both West Hollywood and Palm Springs.

Photo by Zoriana Stakhniv