The concept of "no-fault” divorce is not as simple as it seems. In Florida the term is not absolute. There may be only no-fault grounds available for filing in Florida, but according to Bradley H. Trushin, an attorney with offices in Fort Lauderdale and Miami, some contested issues such as alimony and child custody do take marital misconduct into consideration.
In order to become divorced in Florida, you must give the court a reason for granting you that decree. The 2009 Florida Statutes allow you two choices: one of the parties must be literally and certifiably mentally incapacitated, or the marriage must be irretrievably broken. The last is generally what is referred to as the “no-fault” ground because by definition, the petitioner does not have to state why the marriage broke down and no proof is required that it has.
We have our 40th president to thank for the inception of no-fault divorce. While he was governor of California, Ronald Reagan signed the first no-fault divorce provisions into law in 1969. Florida followed suit three states later, in 1971.
While all divorce petitions are considered “no-fault” in Florida, this is a little like saying that all dogs are animals—but there are a lot of different breeds of dogs. Under Florida law, you may receive a Regular Dissolution of Marriage or a Simplified Dissolution. The latter most closely resembles the accepted interpretation of a no-fault divorce because the parties file and appear in court jointly. There must be no children born of the marriage and the wife cannot be pregnant. Furthermore, either there must be no marital assets or debt or the disposition of those things must have been agreed upon prior to the proceedings. Then there is the issue of annulment. Though Florida’s laws for this are virtually non-existent, they do require that the equivalent of fault be proved. Further complicating matters is the fact that Florida also offers “absolute” divorces and “limited” divorces. The latter is akin to a legal separation, and it does require fault grounds.
According to Florida attorney Bradley Trushin, certain kinds of marital misconduct can affect a judge’s decisions in a contested divorce situation. While adultery isn’t grounds for a divorce, it can be a consideration for custody arrangements if a party’s adulterous actions are considered to have had a harmful effect on his child. Under Florida law, the courts are free to weigh the “moral fitness” of a parent in custody decisions.
The concept of no-fault divorce was originally created to alleviate the burden of proving wrongdoing through litigation, something that can be costly, cumbersome and emotionally charged.
Opponents of no-fault divorce argue that it makes divorce too easy and that litigants are taking this route without stopping to consider the impact divorce might have on their families.
In 1969, prior to the advent of no-fault divorce, between 85 and 90 percent of divorces were uncontested, according to Miami lawyer Stanley Rosenblatt, whose 1969 book “The Divorce Racket” was a force in the no-fault divorce movement. Hence, in a respect people were fashioning their own version of no-fault litigation even before it had a name.