No Fault Divorce And Colorado Law

January 28, 2012

While browsing the internet the other morning, I came across an article concerning the issue of "no-fault" divorce and the State of New York. After finishing the article, I started pondering what life would be like, in a legal and real world sense for Denver divorce attorneys, and the general public, if Colorado were not a "no-fault" state? I can only imagine the extra layer(s) of litigation that would ensue if grounds for a divorce had to be proven. It is not uncommon for people to come to me still believing that in Colorado they must show grounds, or justify the reasoning, as to why a divorce should be granted. Generally, in Colorado, a party need only indicate that the marriage is irretrievably broken, with no chance of reconciliation, for a divorce to be granted.

Going back to the specific article, as of January, 2012, New York granted its first contested no-fault divorce. Though laws in New York were changed in 2010 to allow for no-fault contested divorces, the first one was evidently not completed until early 2012. Sadly, the specific article related to a 79 year old woman seeking to end her 56 year marriage to her husband. On the other hand, she, or they, may have endured 56 years of sadness and fighting, forced to stay together because their circumstances did not fit into the confines of what New York statute considered legitimate reasons for divorce.

We have all seen movies, particularly older ones, in which a divorce court scene may be filled with legal debate or litigation over issues such as infidelity, cruelty,abandonment, spousal abuse, loss of affection, bigamy, or whatever other reason needing to be established for a divorce to be granted. This is no longer the case, in Colorado, and elsewhere. No-fault divorce statutes were first enacted in California in 1970. Within a little over a decade, all but two states had no-fault divorce statutes on the books, including Colorado. As a result, divorce rates throughout the nation have risen to roughly 50%. There are many arguments from both sides of the aisle as to why there should or should not be no-fault divorce. Though I practice divorce law in Colorado, I do not believe divorce is a good thing people should rush into. At the same time, I do not believe people should be forced to stay in a relationship, or tied together financially, when the love and happiness they once knew are gone, and never coming back. Beyond the increase in the divorce rate of the country, there have been other studies showing some of the positive benefits of no-fault divorce.

Specifically, a 2004 university study regarding the issue of no-fault divorce and effects thereof indicated that in states that had adopted no-fault divorce laws, there were significant decreases in suicide rates for women, rates of domestic violence, and rates of homicide by an intimate partner. These facts alone should be a basis for no-fault divorce laws. Though the intent of this posting is not to take a position on such laws, one can logically discern a benefit. When people, particularly women, are forced to stay in an abusive marriage because the law either does not provide them an out or they are unable to prove that the abuse is occuring, the likelihood of abuse or trapped helplessness would logically go up. As suggested in the study, when the abuser knows the law will allow the other spouse an out without proving grounds, he or she may think twice about committing, or continuing, the abusive behavior.

As human beings, we evolve and change over time. Couples fall in and out of love. Couples treat each other poorly. Things such as adultery, emotional abandonment, or financial neglect are factors that lead to divorce. From a legal perspective, the emotional, mental, and financial costs to prove these types of support the need for no-fault laws.

In any divorce case, there are various factors that may be fought over. With each factor in a Denver custody or divorce case, whether visitation, child support, alimony, or property, there is a cost. Beyond emotional costs, each issue means more money paid to your divorce attorney. I can only imagine the few extra hours that might be needed in court, and the hundreds or thousands of dollars expended, trying to prove, or disprove grounds for divorce. With any contested issue in a divorce or family law case, the key is what you can prove. Over my years of practice, I have seen instances in which there has been domestic violence, child abuse, or other issues which I believe are occuring, but for which there is no proof beyond a he-said/she-said toss of the coin. In these instances, a judge is forced to assess credibility and make a ruling from there. If one had to prove grounds for a divorce, he or she would literally be forced to fight for his or her freedom, safety, financial security, or otherwise in terms of having to prove that a divorce should even occur. This makes no sense, from a monetary standpoint, as well as from other perspectives. Certainly, we as a state, nation, and society have evolved to the point of recognizing that people should not be forced to remain together without first showing the most eggregious, provable circumstances.

I will often say to clients, or potential clients, that if one party to a marriage wants a divorce it will happen. Though this is a true statement, or 99.99999% true, Colorado statute still holds onto, though by a small degree, notions that the law still plays a part in relationship decisions. Pursuant to C.R.S. 14-10-110, if both parties to a divorce action attest to the marriage being "irretrievably broken," a divorce will occur without issue. However, C.R.S. 14-10-110(2) indicates that "If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that give rise to the filing of the petition and the prospect of reconcilitation, and shall: (a) Make a finding whether the marriage is irretrievalby broken; or (b) Continue the matter for further hearing not less than thirty days nor more than sixty days later, or as soon thereafer as the matter may be reached on the court's calendar, and may suggest to the parties that they seek counseling. At the adjourned hearing, the court shall make a finding whether the marriage is irretrievably broken."

Though Colorado is considered a "no-fault" state, C.R.S. 14-10-110 certainly seems to suggest that a party to a divorce case can at least put up a fight to block the divorce and force the other party to expend funds proving his or her case in terms of why the marriage is irretrievably broken. Over the hundreds of Denver area divorce cases I have dealt with over the years, I have never seen anyone invoke this right to challenge the divorce. I am sure one day I will. I believe it would be highly unlikely that a court would block a divorce from occuring, so long as one party wants it. Nonetheless, if one party denies irretrievable breakdown, it must then be proven to the court. Fortunately, case law suggests that a party need not prove a specific ground, but rather leaves discretion up to the court to find whether the marriage is broken in a general sense. To me, the whole statutory subsection still seems a little authoritarian and silly. I know the day will come, maybe, when I have to argue why a marriage is or is not irretrievably broken. At that time, I will put on my black robe and white powered wig and drive my horse and buggy to the courthouse.

I cannot fathom people being forced to remain together. At the same time, I do question people changing partners and spouses as quickly as they change their socks or hair styles. An ugly relationship is like a pot of tea waiting to boil. At some point the steam will blow. People should not be subjected to remaining in these types of situations. Children should not be forced to grow up in a toxic environment. Most would prefer to grow up with mom and dad together. That's not always healthy. Though the right to divorce is not 100% absolute, it is now easier in all 50 states. This is not to say that some, such as Oklahoma, are not looking into turning back the clocks and changing their laws. I think I'll stay put in Colorado.