The Role of Fault in a California No-Fault Divorce

California adopted no-fault divorce with the Family Law Act of 1969, effective January 1, 1970. The Act abolished California’s action for divorce and replaced it with a proceeding for dissolution of marriage on the grounds of irreconcilable differences. This meant that married couples could divorce[i] without having to show fault of any kind on the part of one spouse.


That said, fault can still play a role within divorce proceedings—in specific ways. For example, generally spousal support issue is not affected by “fault” or “innocence.” Support cannot be ordered or withheld to reward or punish either party, and the award cannot be based on good vs. bad-faith conduct.[ii] However, California’s family code provides certain exceptions protecting abused spouses.[iii]


A spouse convicted of attempted spousal murder is not entitled to any temporary or permanent spousal support (or medical, life, or other insurance benefits or payments) from the injured spouse.[iv] Additionally, a spouse convicted of violent sexual felony is prohibited from receiving an award of spousal support.[v] And finally, where there is a criminal conviction for an act of domestic violence perpetrated by one spouse against the other spouse entered by the court within five years prior to the filing of the dissolution proceeding, or at any time thereafter, there is a rebuttable presumption affecting the burden of proof that any award of temporary or permanent spousal support to the abusive spouse should not be made.[vi]


In addition to the above exceptions, and notwithstanding the general “no fault” mandate, probative evidence in the nature of fault often arises in contested spousal support cases. For example: in situations where the supporting spouse is intentionally not earning up to his or her ability is admissible to show support should be awarded consistent with his or her earning capacity instead. Conversely, proof that the spouse requesting support has failed to make reasonable good faith efforts to become self-supporting (where capable of self-sufficiency) is admissible to show support should not be awarded or should be awarded at a level less than allegedly needed.[vii]


On a related note, evidence that the spouse seeking support has mismanaged income-producing assets is also admissible on the question of “need” and whether the support obligation should be continued. And finally, evidence that the custodial parent in an international move-away case has frustrated the other parent’s custody/visitation rights under a California order is admissible on the issue of whether to “sanction” the custodial parent with a modification or termination of spousal support.[viii]


[i] A divorce differs from an annulment in this regard in that only a “putative spouse” can receive support upon a judgment of nullity. Whether the spouse knew of the invalidity of the marriage (his/her innocence or fault) is in issue. Family Code section 2254

[ii] See Family Code section 2335 (evidence of specific acts of misconduct is inadmissible)

[iii] “Together, these provisions represent ‘a legislative determination that victims of domestic violence not be required to finance their own abuse.’ (Citation omitted.)” Marriage of Priem (2013) 214 CA4th 505, 510.

[iv] Family Code section 4324

[v] Family Code section 4324.5

[vi] Family Code section 4325

[vii] Family Code sections 4320(l) and 4330(b)

[viii]  Marriage of Condon (1998) 62 CA4th 533, 548