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Why do we have no-fault divorce?

Why do we have no-fault divorce?

Divorce often happens because someone believes their partner did something wrong during the relationship. However, Wisconsin is a "no-fault state" for divorce. This means that a spouse doesn't have to prove that anyone did anything wrong to get divorced. The no-fault provision applies even if someone is clearly to blame for a relationship ending. So, why do we have no-fault divorce?

Wisconsin No-Fault Divorce

No-fault divorces are available throughout the country. However, Wisconsin, along with Oregon, Washington, Nevada, Nebraska, Montana, Missouri, Minnesota, Michigan, Kentucky, Kansas, Iowa, Indiana, Hawaii, Florida, Colorado, and California, is considered a pure "no-fault" state. In these jurisdictions, no-fault divorce is the only way to get divorced. Each no-fault state has its own statutory language.

In Wisconsin, to file for divorce, at least one spouse must allege that the marriage is irretrievably broken (that is, reconciliation isn’t possible). In other words, a spouse doesn't need to prove that the other did something wrong for the court to grant the divorce. If the court agrees and believes that there is no reasonable prospect for reconciliation, the divorce will be granted.

This is not to suggest that the court doesn't care about individual bad acts that may have occurred during the marriage. Issues such as interspousal violence and domestic abuse are extremely relevant during a divorce case, especially when minor children are involved. Adultery is also potentially relevant. Although it is not a basis for divorce, when it can be shown that a spouse's extramarital affair impacted marital property, those effects may be considered. Likewise, if the couple has minor children who have been harmed by the affair, the court could consider this information when deciding custody and placement.

Why Wisconsin is a No-Fault State

Although all U.S. states have some form of no-fault divorce, Wisconsin was one of the first to allow its citizens to end a marriage on this basis. As divorce became more common in society, the no-fault divorce concept came under scrutiny. Some believed that this form of marriage dissolution undermined the sanctity of marriage. When divorce rates began to rise in the 1970s, Wisconsin appeared to be ready for a change from traditional divorce law. In 1977, lawmakers introduced legislation for a no-fault divorce system. It was thought that the new system would minimize stress and conflict for those involved. One thing that set Wisconsin apart from other no-fault states was that it took steps to ensure that judges continued to decide child support amounts. The system also kept a way for spouses to request maintenance after divorce. When it passed, lawmakers made clear that the new law's intent wasn't to make divorce easier to obtain.

Today, Wisconsin's no-fault divorce laws continue to focus on minimizing stress. Divorcing parties don't have the burden of pleading and proving multiple fault grounds to obtain an equitable result in their cases. Depending on the facts of the case, those that feel that their spouse's wrongdoing is germane to the divorce may still have the opportunity to present evidence. Additionally, child support is determined through factors that will be examined by the court rather than through a basic formula. Spousal maintenance is also available under a no-fault divorce. Without having to prove additional grounds, divorcing parties can move forward with their divorce cases more efficiently and in a less conflict-oriented way.

Attorney and mediator Karyn Youso of First Look Family Law has extensive experience helping clients understand their options and connect with resources during and after their Wisconsin divorce.

Contact us today for a consultation to take a "first look" at your situation.