No Fault Divorce

By Rayna Brachmann, Esq.

Nevada is a “No Fault” Divorce State.  What that means is that one party must assert that the parties are incompatible in marriage, and they can no longer remain married.  The Court rarely, if ever, inquires further.  It is enough to say that we cannot be married anymore and the Court will make a finding that the parties are incompatible and grant a divorce.  This is not the case in every State.

I was recently in South Carolina attending a continuing legal education course taught by an attorney from Florida, who had also practiced family law in South Carolina.  She told me that South Carolina is a “Fault Divorce” State.

Specifically, in South Carolina, there are five grounds for finding fault to grant a divorce.  They are: (1) adultery; (2) desertion for a period of one year; (3) physical cruelty; (4) habitual drunkenness; provided, that this ground shall be construed to include habitual drunkenness caused by the use of any narcotic drug; or (5) on the application of either party if and when the husband and wife have lived separate and apart without cohabitation for a period of one year. A plea of res judicata or of recrimination with respect to any other provision of this section shall not be a bar to either party obtaining a divorce on this ground.

When the attorney was telling me about her practice in South Carolina, she said that as a matter of practice, the parties could not agree on the record as the “fault” grounds because that would be collusion by the parties, so it would have to be testified to under oath.  In other words, the parties cannot agree that spouse one was having an affair and they each knew about it.  That would not be sufficient in some courts for a Judge to find fault and grant a divorce.  So one spouse would need to be having an affair, and the other spouse would need to be unaware of the affair in order for it to qualify as “fault” for a divorce.

The attorney related another instance where the parties were using the one year of living apart as the grounds for divorce.  However, they both had to testify under oath as to the period of living apart that they had not had sex during that time.  If they had been physically intimate during the one year period, they would have to start the one year time clock over before the Court would grant them a divorce.

In Nevada, and indeed, in much of the West, we take for granted no fault divorce.  When a party is ready to end their marriage, they are not subject to the year separation with no sexual activity between spouses, nor the necessity to prove that one spouse has had an affair or an addiction, or engaged in physical cruelty.  It was a good reminder to appreciate the easier process for a person who is ready, for whatever reason, to end a marriage that is no longer working for them.

Kimberly Surratt served for eight years on the executive council and has been the vice chair and then chair of the State Bar of Nevada Family Law Section. In addition, she is the President-Elect of the Nevada Justice Association and the chair of the domestic lobbying committee. She has lobbied with the Nevada Justice Association since 2004.

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