Whose No-Fault Is It?

As I wait for my new divorce clients to form a line outside of my office in the aftermath of the Ashley Madison hack, I thought it would be a good time to talk about what constitutes grounds for divorce.

In the old days, you had to prove to the court that you had a good reason to get divorced. Valid reasons included your spouse’s adultery, abandonment, a lengthy prison sentence, emotional or physical cruelty, or a spouse that physically can’t have sex anymore. Defenses to these claims included connivance (you were at the orgy too), condonation (you forgave me), recrimination (you’re having an affair as well), and provocation (I didn’t want to have sex with the neighbor but you wouldn’t let me watch more football and I didn’t have anything else to do).

As you can imagine, litigating these issues caused a lot of turmoil between the parties and their attorneys. I, for one, am glad I never have to litigate the issue of whether someone is still able to have sex with his spouse: “Your honor, although we all agree that my client’s chainsaw accident was gruesome, I remind the court that it’s not the size of the boat, but rather the motion in the ocean that counts.”

Fortunately, every state has now passed so-called “no-fault” divorce laws (Wisconsin passed its version in the late 70s) that allow a party to get divorced without proving that one of the traditional grounds exist. All you have to say is that you’re sick of being married to the other person–that the marriage is “irretrievably broken” in statutory terms–and the court will grant your divorce. Believe me, there is still be plenty to fight about during the divorce process, but at least you don’t have to worry about the judge telling you that you have to stay married.