What Is No Fault Divorce in California?

The term “no fault divorce” is often used when discussing divorce, without further reference to its meaning. Before 1970, California had a fault-based divorce system, which required one spouse to prove that the other had engaged in wrongdoing before obtaining a divorce. California was the first state in the nation to do away with this fault system when it removed from consideration marital fault as grounds for divorce. California’s no fault system now allows a couple to obtain a divorce based simply on a breakdown of the marriage. If you are considering divorce, contact an Orange County divorce attorney.

Fault Divorce

Before 1970, California and other states required as a prerequisite to divorce that one party prove an immoral act by the other before being granted a divorce. Some examples of the bad acts a party could use to establish fault included:

• Adultery
• Desertion or abandonment
• Cruelty
• Incarceration
• Impotence
• Insanity

There were also several defenses available to the party who was alleged to be at fault, such as:

• Condonation: A claim that the plaintiff spouse knew of the defendant spouse’s conduct and condoned it
• Connivance/provocation: A claim that the plaintiff spouse encouraged or provoked the defendant spouse to commit the act
• Recrimination: A claim that the plaintiff spouse was also guilty of the defendant’s act
• Collusion: A claim that the grounds for the divorce were fabricated in order to procure it

A defendant spouse who successfully argued one of the above defenses to the plaintiff spouse’s allegations could prevent the divorce.

There were a number of disadvantages inherent in the traditional fault divorce system. Principally, it limited the availability of divorce to a narrow range of circumstances, which had the effect of restricting access to divorce to spouses who simply no longer felt affection for one another despite neither having committed fault, and it was applied inconsistently (sometimes applied and other times not). It also required litigation on whether one party was at fault, which often involved disclosure and litigation concerning highly sensitive, personal, and not readily provable matters to the court.

No Fault Divorce in California

No-fault divorce, as its name would imply, eliminated the requirement that one party must prove fault by the other party to obtain a divorce. Instead, it allows couples to obtain a divorce based upon a breakdown of the marriage, normally characterized as “irreconcilable differences,” “incompatibility,” or “irremediable breakdown of the marriage.” No fault divorce offers several benefits over traditional fault divorce, chief among them being that it allows a couple to obtain a divorce even though neither party did anything wrong. In most cases, it is also less expensive and offers a faster resolution than the prior fault-based standard.

In California, the dissolution of a marriage may be based upon either:

1. Irreconcilable differences that have caused the irreparable breakdown of the marriage, or
2. Permanent legal incapacity to make decisions

Invariably, a marriage dissolution or legal separation is sought on the ground of “irreconcilable differences, which have caused the irremediable breakdown of the marriage.” California’s family laws define “irreconcilable differences” as “those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.” This is a very broad definition that encompasses virtually any reason as to why the spouses are unable to resolve their marital problems.

Contact an Orange County Divorce Attorney

For more information about the grounds on which you may seek a divorce, please contact an experienced Orange County divorce attorney at Seastrom Tuttle Murphy Dockstader by calling us at 949-474-0800.

Frequently Asked Questions

What does no-fault divorce mean in California?

It means neither spouse must prove the other did anything wrong to obtain a dissolution. Irreconcilable differences that have caused the irremediable breakdown of the marriage is a sufficient ground, and the assertion of one spouse is enough. California was the first state to adopt this approach, and the practical consequence is that the court does not conduct an inquiry into who caused the marriage to fail.

Does misconduct affect the outcome at all?

Generally not on the property division or on spousal support. The division of community property is equal regardless of fault, and adultery is not a factor in setting support. There are important exceptions where conduct has financial or safety consequences: a spouse who conceals or dissipates community assets faces remedies under the fiduciary duty between spouses, documented domestic violence is a statutory factor in spousal support and bears directly on custody, and conduct affecting the children is central to the best interest analysis.

Can a spouse contest the divorce itself?

No. Because the ground is no-fault and requires only one spouse’s assertion, the other cannot prevent the dissolution by objecting or by refusing to participate. What can be contested is everything else: how property is characterized and divided, whether support is paid and how much, and the custody arrangement. A case described as contested is contested on those issues rather than on whether the marriage ends.

Does no-fault make a divorce simpler?

It removes one category of litigation, but it does not make a complex estate simple. Because fault is off the table, the disputes concentrate entirely on the financial questions: what a business is worth, what income is available for support, whether an asset is community or separate. In a case with substantial assets those questions are decided by forensic analysis rather than by legal argument, so the absence of a fault inquiry shifts the work rather than reducing it.