No-Fault Versus Fault Divorce

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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, because courts won’t consider either spouse's misconduct when deciding whether to grant the divorce.

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 spouses to allege fault as the basis for a 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
  • abandonment
  • substance abuse, and
  • a felony conviction.

How Does Fault Impact a Divorce?

Courts may consider marital 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 wasted marital funds on an extramarital 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. 

To learn how different states use fault as a factor in alimony and property issues, see the Adultery and Divorce section on DivorceNet.com and Nolo's Essential Guide to Divorce, by Emily Doskow.

(Get more information about Divorce and Family Laws by State).

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