Earlier this year, we wrote a blog post on the issue of “Covenant Marriages“, which are an attempt in some states to let spouses agree at the time of marriage to “opt out” of the no-fault divorce system and require a spouse to have grounds for a divorce. Colorado is not among the very few states which recognize covenant marriages.
In the English common law, divorces were long prohibited, and even when the concept began to be accepted, they required very specific, and limited, grounds for a divorce. In other words, falling out of love with your spouse was not sufficient to dissolve the marriage as in a no-fault divorce – most of the time the spouse had to show some form of fault by the other spouse.
No-Fault Divorce in Colorado
Colorado abolished fault-based divorce in 1972 and for the past 48 years fault is not only not required to obtain a dissolution of marriage in Colorado, evidence of fault is rarely admissible.
No-fault divorce is a type of divorce that does not require any sort of fault or wrongdoing by either spouse in order for the Court to sign off on a divorce. The most common ground for a no-fault divorce is “irreconcilable differences” in other words, there has been an “irretrievable breakdown” of the marriage. That means one spouse does not need to explain to the Court why they are requesting a divorce, they just need to assert that the marriage is over for the Court to grant a divorce.
In Colorado, the only grounds for divorce is that the marriage is irretrievably broken. C.R.S. 14-10-106(1)(a)(II). That means that if one spouse says the marriage is irretrievably broken, the Court will grant the decree – it does not matter if the other spouse claims the marriage is not broken.
A no-fault divorce is far easier to get than a fault-based divorce because no time or money needs to be spent showcasing the bad behavior of the other spouse. Depending on the circumstances, there may be a lack of tangible evidence to show that bad behavior, making it difficult, if not impossible, to get divorced.
With No-fault divorce, no one is to blame for the marriage ending, which alleviates the need of the Court to “punish” or “reward” one spouse. In fact, since fault is not required to prove a spouse has grounds for divorce, the Court will generally exclude any evidence of wrongdoing in most cases.
Constitutional Challenge to No-Fault Divorce
Following a 2018 divorce, a Nebraska man is asking the Nebraska Supreme Court to overturn the no-fault divorce statute after the trial court disregarded his objection to a divorce. The husband had tried to refuse to grant his wife a divorce on religious grounds but, under Nebraska’s no-fault divorce statute, was overruled by the district court judge.
In briefing and during oral arguments at the Nebraska Supreme Court earlier this month, the man argued that no-fault divorce may be unconstitutional due to due process and equal protection violations since the right to marry is a fundamental right. As in Colorado, Nebraska’s no-fault divorce law has been on the books since 1972. It is unclear if the man is asking the Court to reinstate his marriage if the Court agrees with him – or if something like that is even possible in the first place.
Unsurprisingly the Nebraska Supreme Court has found the no-fault divorce law to be constitutional, keeping no-fault divorce on the table for Nebraska couples.
In a similar ruling, the Maryland Court of Appeals has ruled that Maryland’s no-fault divorce law does not violate a party’s Free Exercise clause rights (even if that party’s religious beliefs prohibit no-fault divorces), leaving it on the books for now. In the case, the Husband argued that no-fault divorce violated his constitutional right to marriage, in addition to infringing on his free exercise of his religion.
Despite several recent challenges, no-fault divorce is likely here to stay. It is worth noting that, while every state has some version of no-fault divorce, that does not mean that a fault based divorce is not possible in some jurisdictions.
Sometimes Fault Matters in Divorce
There are a few exceptions when the Court will entertain evidence of fault however. Evidence of domestic violence or abuse may affect child custody determinations, or evidence of wasted assets may be needed to determine property division.
No-Fault Divorce vs Child Custody
In most cases, one parent’s bad behavior (i.e. “fault” will not affect the Court’s decision on custody matters and the Court will not limit a parent’s time with their child to punish bad behavior during the marriage. That said, the Court can take bad behavior into consideration when making decisions if that bad behavior directly and negatively impacts the child.
This does not mean a court will consider one spouse’s infidelity, or even lying to the other spouse, nor minor criminal conduct which does not impact upon parenting. But if a spouse has engaged in serious criminal conduct, engaged in domestic violence or has a drug or alcohol problem, while arguably “fault”, those factors are very relevant to the issue of parenting in Colorado divorce.
Fault is particularly true in cases involving domestic violence or child abuse. If there are credible allegations of domestic violence (meaning the court has found by a preponderance of the evidence that abuse happened), it may affect custody decisions and will affect decision making. Once the Court makes a finding of domestic violence, under C.R.S. 14-10-124(4)(a)(III), the Court can award sole decision making to one parent. If there is child abuse or neglect, the Court cannot award joint decision making if one parent objects to that. C.R.S. 14-10-124(4)(a)(I).
For more information on what factors a court will consider for child custody, see our Best Interests of the Children article in the Colorado Family Law Guide. And for specific details as to how child or spousal abuse will hurt a parenting case, see our Domestic Violence & Colorado Child Custody article.
Fault Divorce & Division of Marital Property
In some circumstances, the division of the marital estate can be affected by bad behavior when one spouse has dissipated or wasted marital assets. If one spouses gives away or wastes marital assets for nonmarital purposes (like buying expensive jewelry for a mistress or giving property to a family member to deprive the other spouse in the divorce), the other spouse can raise the dissipation argument and request that the property division be unequal in order to recapture the value of the assets otherwise wasted. Dissipation cases are rare in Colorado since spending during the marriage is usually presumed to be assumed to be marital.
For more information on the division of marital assets & debts in a Colorado divorce, see our Division of the Marital Estate article in the Colorado Family Law Guide.