LEGAL GUIDE
Written by attorney Henry S. Gornbein | Nov 11, 2011

What Does No Fault Divorce Really Mean?

In Michigan where I practice family law, it became one of the first no fault divorce states in 1971. Michigan law requires that every divorce complaint filed must have the following statement: "There has been a breakdown of the marital relationship to the extent that the objects of matrimony have been destroyed, and there remains no reasonable likelihood that the marriage can be preserved." I would like to explore what this means.

When the law first became effective in Michigan, judges who were used to fault divorces were unclear as to what was needed for a no fault divorce. In one early case, when the divorce was being finalized, the judge asked the wife, who was under oath, why she wanted a divorce. This poor woman who was under a lot of pressure, fumbled about for awhile and was really not able to give an answer. The judge kept asking her the reason for the divorce. She still was not sure of what to say, nor was her attorney. The judge asked, "why is the marriage broken down?" Finally, after thinking very carefully, she said, "I hate my husband’s guts." The judge then said, "divorce granted."

I have had many cases over the years where my client has wanted to save the marriage. I’ve been asked on numerous occasions, is there some way to stop a divorce in Michigan? I have written letters to opposing counsel; I have even had statements put on the record by clients who have said that they are opposed to the divorce. I have clients deny that the marriage is broken down, and say that through marriage counseling, the marriage can be preserved. Under the laws in Michigan, a breakdown of the marriage merely consists of the Plaintiff, who is seeking the divorce, stating on the record, "I can no longer live with my husband or wife." That, along with the statutory language that I cited about, is all that is required for a divorce to be granted in Michigan.

What about situations where there is fault? Fault is still a factor in divorce here in Michigan. You do not need fault as a reason for the divorce, but fault comes into play regarding issues of property division, child custody, and spousal support/alimony. In awarding property, courts will look at fault among many factors, including the length of the marriage, lifestyle, income levels, contributes of the parties, ages, health, etc. I have talked to many judges over the years regarding the issue of fault and how much bearing it has in a property settlement. It is a factor, but not a significant one. Michigan is an equitable distribution state. This means that there must be an equitable, or fair, distribution of the property. It does not necessarily mean an equal division. In most cases where there is not a lot of fault and everything was acquired during the marriage, property is divided on an equal basis. In a heavy fault case, instead of an equal division, the courts might go to a 55/45 split, or in an extreme situation, as much as 60/40. I have never seen a judge go beyond a 60/40 property division where there is extreme fault.

What are examples of cases of extreme fault? In one case, the husband had several affairs. At the end of the marriage, he reconciled with his wife, and she was pregnant. At the same time that he had reconciled, he was having an affair with another woman who also became pregnant. Other situations of extreme fault include domestic violence, dissipation of assets due to gambling, severe alcohol or drug abuse problems where a lot of marital assets have been spent. There are many, many more examples that we could discuss.

I tell my clients that every divorce is different. Do not generalize. Divorces are fact driven, along with the law. For every rule, I have found over the years, that there are always exceptions. Think of your situation and remember that your friends or neighbors may have similar situations, but in actuality, every case is different.

In summary, in Michigan we have a no fault divorce law. Fault is not the basis for divorce, but it does come into play regarding property division as well as spousal support and sometimes in custody. If you have thoughts or comments, please share them with me and our readers.

By: HENRY S. GORNBEIN

Family Law Attorney & Legal Correspondent

DivorceSourceRadio

40900 Woodward Avenue, Ste. 111

Bloomfield Hills, MI 48304-5116

248/594-3444; Fax 248/594-3222

DivorceSourceRadio.com

[email protected]

[email protected]

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