The Spear’s Family Law Survey 2021 edition was released in the midst of the COVID-19 pandemic. At the time, the legal ramifications of leaving the European Union were becoming clear. Vaccines had only recently been introduced in the most developed countries, and lockdowns and restrictions on public life were still commonplace. Schools were still closing, lateral flow tests were a constant background noise, and most work was still done from home.
This year, life has returned to normalcy, as evidenced by the responses of several dozen top family lawyers. However, they also show the uncertainty felt by lawyers and their clients in the new context of the Divorce, Dissolution, and Separation Act 2020 and a future dominated by a extreme increase in transparency.
Based on the 2022 Spear’s Family Law Survey, family lawyers are expecting the majority of their high-net-worth (HNW) clients to lean towards no-fault divorces in 2023. Family lawyers are also expecting that a less adversarial approach will be the main benefit of no-fault divorces for HNW clients, with the minimized effect on children and staying out of court following close behind.
What is no-fault divorce?
In modern day, the most common type of marriage dissolution is no-fault divorce. Traditionally, a person filing for divorce had to prove some wrongdoing by their spouse that violated the marriage contract- cruelty, adultery, and desertion are common examples of grounds for a fault divorce. No-fault divorces, on the other hand, do not require any proof of wrongdoing. Rather, the filing spouse simply claims that the couple cannot get along and that the marriage has broken down as grounds for divorce. Depending on the state, incompatibility, irreconcilable differences between the spouses, or irreparable breakdown of the marriage may be used. No-fault divorce is now recognized in all states, and many have adopted pure no-fault divorce, in which fault divorces are no longer recognized.
After the declaration of the irreversibly broken-down marriage, either by one or both partners, the couple then has a minimum of 20 weeks to figure out post-marriage arrangements for children and property before the conditional order for divorce is granted. Then, the couple has another 6 weeks for a cooling-off period in which the divorce can still be reversed before the final order is granted.
From the 1970s onward, no-fault divorce became increasingly popular among states. The no-fault movement gained traction as an alternative to the perjury and forum-shopping tactics used by some unhappy couples to circumvent their state’s fault divorce laws. However, critics of the pure no-fault movement, in which fault divorce is not an option, have blamed no-fault divorce for a slew of social ills, including rising divorce rates, increased bad marital behavior and domestic violence, and the annihilation of the mutual interdependence concept that was once central to marriage.
Arguments for no-fault divorce
Several studies have been conducted to examine the impact of no-fault divorce on divorce rates in the United States. Typically, the studies find an increase in the short-term rate but no long-term causal relationship. The most common explanation given is that the older laws were ineffective and were not followed in any case, though there are some opposing views. Based on their research findings, economists Betsey Stevenson and Justin Wolfers argue that states that legalize no-fault divorce see a decrease in domestic violence and female suicide. They specifically state that “states that adopted no-fault divorce experienced an 8 to 16 percent decrease in wives’ suicide rates and a 30 percent decrease in domestic violence.” They also claim that their research shows that no-fault divorce laws have no long-term effect on divorce rates.
According to Stephanie Coontz, a history professor at Evergreen State College, “in the years since no-fault divorce became nearly universal, the national divorce rate has fallen, from about 23 divorces per 1,000 married couples in 1979 to under 17 divorces per 1,000 in 2005.” “Once you allow the courts to determine when a person’s desire to leave is legitimate,” she continues, “you open the door to arbitrary decisions about what is or should be tolerable in a relationship, made by people who have no stake in the actual lives being lived.”
According to a 2010 New York Times editorial, New York was “the only state where a court must find fault before granting a divorce unless the spouses have lived apart for a full year under a formal separation agreement — a proven formula for inviting false testimony, endless litigation, and generally making divorce far more painful than it needs to be.” Later that year, New York finally became last state to legalize no-fault divorce. “Feminist holdouts against New York’s new [no-fault divorce] bill don’t understand how family law affects women today,” says lawyer L.M. Fenton, adding, “It also mystifies me that spouses could still, even in 2010, be forced to stay married to someone who refused to let go.”
Arguments against no-fault divorce
All of the people Spear’s spoke with were generally pleased with the introduction of no-fault divorce, though many expressed reservations and some were deeply concerned about the potential consequences. Some felt it didn’t go far enough. Some thought the change was to a relatively minor aspect of the proceedings, which was usually avoided without too much resentment by either side, who usually recognized the need to specify unreasonable behavior – even in some detail – as a regrettable but necessary part of the process.
Despite this, HNW family lawyers believe the change will be welcomed by their clients: 26 percent predicted that 85-100 percent of couples would be pleased with the news, while 30 percent were slightly more cautious, believing that 60-85 percent would be satisfied, resulting in a clear majority in favor. When asked which aspect of the new process they would appreciate the most, 52% said the non-adversarial approach.
Some clients have expressed disappointment at not having their grievances heard in public, even if losing their moral superiority does help the legal process. ‘I have a couple of clients who are a little upset about it because they want there to be a record,’ said Claire Nickolds of Jones Nickolds. They are the cheated-on spouse who says, “Wait a minute, it didn’t just break down, it’s broken down because he’s run off with his secretary.”
Other practitioners are concerned that the non-adversarial approach will not always be best for the weaker party in HNW divorces, which is often a wife who has spent her time supporting her husband’s successful career. Douglas Allen’s paper on the economics of same-sex marriage, published in the Harvard Journal of Law and Public Policy, contends that the introduction of no-fault divorce resulted in a six-fold increase in just two years, following a century of relatively stable divorce rates. Furthermore, the law increased the rate at which women entered the labor force, the number of hours worked per week, the so-called “feminization of poverty,” and the age at which people married.
Ceri Griffiths, a wealth manager whose practice is entirely dedicated to women divorcing rich men, stated: “Where the danger potentially comes in is that because there isn’t that animosity, there is a greater likelihood that people will try and do this themselves – DIY divorce, doing it online without using a legal team. And that isn’t always a good thing, because what people believe the law says about what they are entitled to and what they actually get are quite different. So couples who reach an amicable agreement but actually misunderstand what they are truly entitled to have a significant impact on women.”
No-fault divorce in New Jersey
No-fault divorces are permitted under New Jersey law. That means you can file for divorce based on “irreconcilable differences,” a legal term for issues in the marriage that cannot be resolved and prevent the relationship from continuing. You don’t have to go into detail about what those differences are; it’s enough to say that the relationship has been broken down for at least six months.
However, New Jersey is not a “pure” no-fault state; a “fault” divorce can still be sought for reasons such as adultery. Having said that, the majority of divorces in New Jersey are no-fault divorces. To file a no-fault divorce in New Jersey, you and your spouse must simply demonstrate irreconcilable differences or have been separated for 18 months prior to filing. However, whether you file a no-fault divorce or not, you may still have to go to court with your spouse, especially if you cannot agree on the terms of your divorce. Your assets may be subject to equitable distribution during the litigation process, which is why you must retain the services of an experienced attorney who is willing to fight for what is rightfully yours.
Conclusion
With the Divorce Dissolution and Separation Act 2020 coming into effect on April 6th of this year, this welcome and long-awaited change to divorce law finally allows couples the ability to part ways without having to place blame on either party. There is only one ground for divorce- the irretrievable breakdown of the marriage- which will not change with the new act. For many decades, couples have had to demonstrate the irreversible breakdown of their marriage by attributing blame (by relying on the other’s adultery or “unreasonable behavior”) or by waiting for a period of separation to elapse (currently a minimum of two years, so long as both spouses consent or five years if one spouse refuses to consent).
This new act brings our antiquated divorce laws up to date. It allows couples to divorce without assigning blame or waiting at least two years after their separation. It will also be possible to file for divorce jointly for the first time. Couples now have more autonomy and more dignity in divorce as a result of the upcoming changes, which will reduce unnecessary conflict and acrimony at the start of proceedings. While there are arguments both for and against no-fault divorces, it seems as though this is a positive step in the right direction for divorce and family law.
