Today, most states reject notions of “fault” in divorce and have adopted “no-fault” laws that allow couples to divorce without airing their dirty laundry in court. The following article provides an overview of the differences between these types of divorces.
What is a No-Fault Divorce?
A “no-fault” divorce refers to a divorce based on “irreconcilable differences” or an “irretrievable breakdown of the marriage.” These are just fancy ways of saying a couple can’t get along and there’s no hope for reconciliation.
When you fill out your petition (legal paperwork) for divorce in a no-fault state, you simply let the court know you’re seeking a divorce based on irreconcilable differences; you don't have to tell the court what led to the divorce or prove that the divorce is your spouse's fault.
In a no-fault divorce, there's no need to claim that your spouse engaged in bad behavior (eg., adultery or substance abuse), because courts won’t consider either spouse's misconduct when deciding whether to grant the divorce, how to divide property, or how much alimony (also called "spousal support" or "maintenance") to award. However, misconduct may be relevant when it comes to child custody and visitation decisions.
Most states now have statutes (laws) that allow for a pure no-fault divorce. Those that don’t, allow for some variation of one. Arkansas and Louisiana, for example, still don’t recognize “irreconcilable differences” as a basis for divorce. Previously, in these states, you had to prove your spouse’s fault before a court would grant a divorce; but, that’s no longer the case. Even in states that don’t recognize irreconcilable differences, couples can get a divorce based on the ground of "separation." If you and your spouse want to avoid alleging fault in these states, you can do so by showing that you’ve been separated for the requisite period of time.
For a state-by-state breakdown of the grounds for divorce, including an overview of the separation requirements, see Living Together, A Legal Guide for Unmarried Couples, by Ralph Warner, Toni Ihara, and Frederick Hertz.
What is a Fault Divorce?
About two thirds of U.S. states still allow their courts to consider fault as a factor in some aspect of divorce. In a fault divorce, one spouse may argue that the other spouse did something which caused the marriage to fail. Each state has a different set of fault grounds, but some of the most common grounds are:
- adultery
- physical or emotional abuse
- substance abuse, and
- a felony conviction.
How Does Fault Impact a Divorce?
As stated above, misconduct may be relevant when a judge is making decisions about child custody and visitation. In addition, in a fault divorce, a court may consider misconduct in one or more of the following ways.
Fault as a factor in granting a divorce. In fault states, spouses can still allege misconduct as the basis for their divorce.
Fault as a factor in dividing property. A court may consider either spouse’s bad behavior as a factor in dividing property. For example, if one spouse had an affair, the court may award a greater share of the marital property to the innocent spouse.
Fault as a factor in awarding alimony. Like the division of property, fault can also have an impact on alimony awards. For example, if the spouse asking for alimony physically abused or cheated on the paying spouse, a judge may reduce or deny alimony payments to the guilty spouse.
To learn how different states use fault as a factor in alimony and property issues, see Nolo's Essential Guide to Divorce, by Emily Doskow.
