In 1970, the State of California originated the concept of “no-fault” divorce. The rationale behind the law was that there was no point in forcing people to stay in a marriage when they were not happy in it, and that requiring someone to prove legal grounds to dissolve the marriage was not serving any useful purpose. Historically, in order to obtain a divorce one had to prove the existence of legal grounds such as adultery. This often required additional expenses on behalf of the aggrieved party, only serving to make the divorce process more expensive and cumbersome than it already was. In the years leading up to the enactment of “no-fault” divorce, courts often granted divorces on bases that were easier to prove, the most common being “mental cruelty.” In that situation, one spouse would testify that he or she was being subjected to mental stress as a result of the actions of the other spouse. Given that, and given that people simply did not want to be married, there seemed little reason to force them to stay in marriages when grounds could not be established. Over time, the “no-fault” movement expanded to other states, although interestingly it only reached the typically progressive state of New York in 2010.
Clients often ask the question as to whether there is any penalty for a spouse engaging in less than stellar behavior during the course of a marriage. The truth is that there is little in the way of compensation available in California to the spouse who is the victim of such conduct. In the case of an extramarital affair, the law allows that spouse to recover any financial expenditures paid on the paramour that ostensibly were expended without the consent of the unknowing spouse, but the amount of those expenses has to be established. In the case of a spouse engaging in financial misdealing that caused a loss to the community estate, we have statutory remedies for breaches of fiduciary obligations. Where a spouse engaged in acts of domestic violence, the law has presumptions against joint custody as the legislature deems domestic violence acts committed against a spouse to be harmful to children, whether the children are involved or not. In situations involving actual battery on a spouse, the family law act does not provide for any remedies that are capable of being ordered by a divorce court-although certainly acts that would impair a spouse’s ability to work are considered when fashioning support orders. In those situations, there may be remedies available through separately filed civil actions. These remedies should be discussed with an attorney specializing in that type of work along with the client’s family law counsel.