Simply speaking a no-fault divorce is one in which the parties are not required to give the court specific reasons for getting divorced. A couple can get divorced if they simply cannot get along anymore, rather than having to prove that one spouse did something wrong. 

The no-fault divorce does not have to be an uncontested divorce, however. The law applies whether you are going to court or not. Here at Herlihy Family Law, we normally do not name any reasons other than incompatibility and breakdown of the marriage when we file a divorce complaint or agreement. 

Understanding No-Fault Divorce

One concern people have when they come to us is whether they have to prove they have a legally approved reason to get divorced.  In Alabama, you simply need to state that you’re incompatible, so there’s no need to give details to the court. In the past, some courts required proof that a marriage had failed for specific reasons to grant a divorce.

This might have consisted of providing proof of infidelity or abuse, for example.  Luckily the law has determined that divorce is a personal decision and you don’t have to convince a stranger to let you get one.

A Brief History of No-Fault Divorce

Some people are concerned that no-fault divorce is a new idea that is contributing to the divorce rate. The first no-fault divorce law in the Western world was enacted in Prussia in 1757.  In the modern era, no-fault divorces date back to the early 20^th century.  And in the US, the first no-fault divorce law was enacted in 1969, over 50 years ago.  Within ten years the no-fault option was nearly universal in the United States. The divorce rate in the US has actually fallen since the 1970s.

Regardless, one of the main advantages is that these laws can decrease the adversarial nature of a divorce.  The previous model tended to increase conflict and even resulted in perjury and false accusations.  For example, judges now do not need to determine whether a party has been unfaithful. 

In the United States, every state permits no-fault divorce, although the requirements may vary. Some require a specific period of separation, for example.  In Alabama, this is not the case. Alabama does require a six-month residency for at least one party.  Fortunately, the pre-Civil War Alabama law that required the approval of both houses of the state legislature to grant a divorce is no longer on the books!

Benefits of a No-Fault Divorce

The no-fault option allows the parties to separate the negotiation process from the emotional desire to assign blame or be proven blameless. We know that both parties may be angry, or hurt, or feel betrayed. This doesn’t have to carry over into the divorce negotiation.  The emotional side of divorce is better handled by experienced and trained counselors and therapists.  Your attorneys are only qualified to handle the legal side of the matter. 

If both parties are ready and willing to get divorced, they can choose an uncontested divorce.  This is a great option for couples who are low-conflict and able to negotiate in good faith.  If it’s possible to negotiate an agreement without going to court, it is far less expensive and time-consuming than a contested divorce through the courts. It’s also likely to result in less ongoing conflict. 

Does a No-Fault Divorce Mean I Can’t Even Mention My Spouse’s Faults?

Not necessarily.  In an uncontested divorce, your spouse’s faults are irrelevant and do not come into play at all.  If the parties are not in agreement and choose a contested divorce, the court may consider bad behavior, such as domestic violence and drug or alcohol abuse, when the case comes to trial. No-fault divorce means neither party has to prove the accusations to actually get divorced. 

They do, however, have to provide evidence to back up any accusations if they choose to bring these to the attention of the court and are asking for a decision based on these behaviors.  This is most likely to come into play when children are involved, as the safety and well-being of the parties’ children come first in making custody decisions. 

If there is evidence of mental illness that endangers the children, this could also become part of the case in a contested divorce. It is not enough to say the other party is being treated for a mental illness, though. Many people find themselves in need of help with depression and anxiety, for example, especially when they’re in a failing marriage. 

What matters is that they are getting the help they need and are capable of being good parents. Simply seeing a therapist is not grounds for losing custody.   

The Uncontested No-Fault Divorce

Why would you need an attorney to help in a no-fault uncontested divorce? There are two main parts to the process.  We start by helping you negotiate your divorce agreement with the other party or their attorney.  Once the agreement is in place, we then generate all of the documents required by the court and file them for you.

Sometimes both parties will be in perfect agreement about everything, so we don’t have to help negotiate at all.  We draw up the documents, everybody signs, and we file them with the court.  After 30 days, they will go to the judge for approval. 

You might think (or hope!) that it’s as simple as filing one signed agreement, but several other documents must be filed.  This can be up to 7 or 8 documents, depending on your circumstances.

At Herlihy Family Law we have many years of experience handling divorces in Mobile and Baldwin Counties and know exactly what the state, county, and individual judges require. 

The Contested No-Fault Divorce

If the parties are not in agreement, your attorney will file a divorce complaint, or respond to your spouse’s. We then guide you through the whole process up to and including a court trial if it comes to that. 

Even in the case of a contested divorce, you do not have to persuade a judge to allow you to get divorced.  The judge’s job is to determine a fair and equitable agreement based on the law and the facts presented to him or her. 

What if I Really Want an At-Fault Divorce?

It’s really not necessary to name and blame in most divorce cases.  Consider whether you truly want all of your faults exposed as well, and whether you want all of the unpleasant details of your marriage on the record. 

Playing the “blame game” is going to distract you both from the legal issues we are here to assist with. It’s also going to end up costing more money if your attorney has to get involved with proving (and defining!) infidelity, for example.

We do understand the desire to tell the world about your spouse’s terrible behavior; however, fault does not typically affect the outcome of the divorce as much as you might think it should.

Since I Don’t Have to Prove I Deserve a Divorce, What Do I Need to Consider to Move Forward?

The most difficult parts of a divorce agreement are often child custody and child support.  You can search our blog for more information about these issues. Some agreement terms can be entirely individual, whereas others must conform to the statutes and standards. 

For example, some statutes determine the amount of child support.  This is based on a formula that takes into account both parties’ incomes, the cost of healthcare, and the cost of work-related childcare.  The amount determined can be altered by agreement, but the judge will need a reason for the deviation from the formula.

The rest of the agreement covers property, assets, and debts. The goal here is an equitable distribution, which doesn’t necessarily mean a 50/50 split. Determining factors include the length of the marriage, what assets and debts a party brought into the marriage, and the income of both parties during the marriage.  Pensions and retirement accounts are taken into consideration as well. This can also be very contentious, but we are experienced negotiators and handle this every day.

We also ensure that both parties come to an agreement about the division of personal property, cars and other vehicles, and their pets.  (Yes, you can put your pets in your divorce agreement!). 

Ready to Talk to an Attorney?

Call the office at 251-432-7909 to schedule a consultation, or go to the homepage of our website and click on “request a consultation.”  We are open five days a week and can offer both in-person and Zoom meetings.  In a consultation, you will discuss your case, your options, and our fees.

Author: Alison Herlihy

Family law attorney Alison Herlihy is a native of Mobile, Alabama. Alison has engaged in the private practice of family law since 2005, focusing primarily on domestic relations, divorce and child support, child custody law, adoption law, juvenile, probate practice, and wills.

Alison Baxter Herlihy earned the prestigious AV Preeminent peer review rating from Martindale-Hubbell, which recognizes attorneys for the highest levels of legal ability and professional ethical standards. Alison is a certified Guardian Ad Litem. In 2015, Alison became a Registered Mediator on the Alabama State Court Mediator Roster, in both general and domestic relations mediation.