Whose Fault Is It Anyway?

The topic of “no-fault” and “fault based” divorce is making a resurgence. Proponents of fault-based divorce argue that it will strengthen the institution of marriage by making it more difficult to get a divorce. Opponents of fault-based divorce rightfully raise concerns about increased cost, heightened conflict, and that those who need to leave an unsafe marriage will face more legal hurdles to do so.

Is Minnesota a “no-fault” divorce state?

Divorce law varies from state to state, but all states currently offer some form of “no-fault divorce.” Minnesota enacted no-fault divorce in 1974. Prior to then, Minnesota couples wanting to end their marriage had to prove one spouse was guilty of misconduct (i.e., adultery, abandonment, abuse, or substance abuse). Now, married Minnesotans do not need to prove misconduct to get divorced or place blame with one party. Instead, they can simply allege there has been an “irretrievable breakdown of the marriage,” which family courts recognize as a sufficient reason to divorce.

Minnesota law even goes a step further to remove moral judgment from the divorce process. Specifically, Minnesota law requires the court to divide marital property “without regard to marital misconduct.” Minn. Stat. § 518.58, subd. 1. That being said, a spouse’s wrongdoing is not immune from judicial scrutiny. For example, if a spouse spent money on an extramarital affair or incurred significant gambling losses, the court may find this constitutes “dissipation” of marital assets. In that case, the court must compensate the innocent spouse by putting them in the same position they would have been in had the spending not occurred.

What is happening in other states?

Unlike Minnesota, many other states offer a “fault-based” option for divorce proceedings. In that case, the couple can choose a no-fault or fault-based track at the time of divorce.

However, there is a trend in some state legislatures (Oklahoma, Louisiana, and Texas) to discuss ending no-fault divorces completely, which would require a spouse to prove wrongdoing by the other spouse to obtain a divorce.

Notably, the Iowa State Legislature is currently considering a bill that would allow couples to waive their right to a no-fault divorce at the time of marriage. Of course, most couples are not thinking about divorce, let alone the implications of a fault-based divorce, leading up to their wedding day. Additionally, because most couples would be making this decision without legal counsel, it is doubtful this could truly be a voluntary and informed waiver.

Conclusion

For now, no-fault divorce remains the law in Minnesota—allowing marriages to end without assigning blame. But the discussions going on in other states, including Iowa, signal that this decades-long approach is neither guaranteed nor beyond debate.