Is No Fault Divorce Fair?

Posted by David Foyil | Jan 19, 2017 | 0 Comments

The concept of no-fault divorce is not new to California.  The law is clear that the state cannot force someone to remain married to someone to which they do not want to be married.  This seems obviously reasonable.

The question of fairness arises when dealing with the concept that upon the dissolution of a marriage or legal separation, the community property and community debts of the parties must then be equally divided.

So, the question is really whether or not it's fair to equally divide assets when a marriage breaks up due to the "fault" of one of the parties.

For instance, in situations of domestic violence, secret financial transactions by one of the parties, abandonment, or dare I say an extra marital affair, clearly one should be able to exit the marriage without having to prove the fault of the other party.  But, when one of the parties clearly causes the marital breakdown, it is not always clearly fair to place the "innocent" party in a situation of financial disruption, or perhaps even financial crisis, when she or he did nothing to place themselves in jeopardy.

Although the law has not addressed these questions, I think there are situations in which we need to examine the law and the legislature needs to consider the equity of an alternative division of community assets and debts when one of the marital partners acts maliciously, irresponsibly, or casually considers the vows she or he made.

Perhaps if there were a financial consequence to bad behavior, people would think twice before embarking down the road of bad decisions.

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