Before 1970, all states required a fault-based divorce. California was the first state to offer no-fault divorce and enacted the new law in 1970.
Many states today offer both fault-based and no-fault divorce. In 2010, New York was the last state to legalize the option of no-fault divorce.
What are fault-based divorce reasons
Each state generally sets its divorce laws. In South Carolina, there are four reasons a married couple can give for desiring a fault-based divorce. Whatever allegation a spouse selects, the person claiming the fault has a responsibility to prove the claim to the court. The court accepts circumstantial evidence since these activities can occur in secret. South Carolina courts expect evidence that meets a serious threshold. Here are the four fault-based divorce behaviors:
- Adultery (requires both opportunity and intention)
- Substance abuse (drug addiction or alcoholism of long standing)
- Physical abuse (and emotional abuse if a spouse fears for health or safety)
- Desertion (requires the spouse to be gone continuously for at least a year)
It is not sufficient, for example, to claim that a spouse committed adultery while he and several of his office mates were out of town at a convention. It does allow opportunity, but there is nothing to prove the intention of the spouse to stray.
The difficulty with fault-based divorce
It can often be hard to obtain evidence sufficient to convince a court that a spouse has committed an alleged fault. A person making an allegation of physical abuse can use medical records and photographs of injuries, including statements from a doctor that the examination findings are consistent with physical violence.
A witness may have been present who is willing to make a statement that a history of emotional abuse, including physical threats, occurred.
In cases of adultery or substance abuse, the spouse may need to hire a private, licensed investigator to collect persuasive evidence for the court. These divorces tend to be expensive, complicated and highly stressful.
Mediation: an alternative to fault-based divorce
A couple can qualify for a no-fault divorce in Mississippi by living in separate residences for a specified period. During this time, they can work with a Certified Family Court Mediator who acts as a neutral party.
A mediator has a strong legal background, mediation training and a state-required amount of experience. This professional will help both spouses lay out their differences and guide them through a process of resolution so that they can achieve a no-fault divorce.
A mediator is not a marriage counselor but a legal representative authorized to help couples negotiate a divorce agreement that is palatable to them both. Mediators help spouses understand that neither of them will get everything their way; they must be open to compromise. If the spouses can behave with civility toward one another, there is a good chance they can avoid the many difficulties inherent in a fault-based divorce.