No-Fault vs. Fault Divorce

In an effort to reduce conflict and nasty court battles in divorce proceedings, all states allow couples to file for some form of "no-fault divorce." Some states only allow no-fault divorce, while others allow you to choose between a no-fault or fault divorce. When you have a choice, you should understand the differences between these two types of divorce and the consequences of filing for a fault divorce.

What Is a No-Fault Divorce?

When you file for divorce in any state, you must have a legally acceptable reason, or "ground," for ending your marriage. When you fill out your petition (legal paperwork) for a no-fault divorce, you don't have to tell the court what led to the divorce or prove that the divorce is your spouse's fault.

Most states allow you to file for a no-fault divorce based on grounds like "irreconcilable differences" or the "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.

However, a few states—including North Carolina, South Carolina, and Louisiana—require couples to live separately and apart for a period of time before they may file for a no-fault divorce. If you and your spouse want to get divorced in one of those states without having to prove that one of you was guilty of misconduct, you must prove that you've been separated for the required amount of time.

What Is a Fault Divorce?

About two thirds of U.S. states still allow fault divorces. When you file for a fault divorce, you claim that your spouse engaged in a certain type of misconduct that caused the marriage to fail. Each state has a different set of fault grounds, but some of the most common grounds are:

• adultery
• abandonment
• domestic violence or some other type of cruelty
• substance abuse, and
• a felony conviction.

Of course, you'll need to prove your misconduct claims before you can get your final divorce (more on that below).

How Does Fault Impact a Divorce?

Depending on the state, judges may consider marital misconduct in one or more of the following ways.

Fault as a factor in granting a divorce. If you've filed for divorce based on your spouse's misconduct (in states that allow fault divorces), you'll have to prove those claims before a judge will grant the divorce. This means that you won't be able to take advantage of the cost and time savings of an uncontested divorce. You'll probably have to hire a lawyer and go through all the legal steps of a contested divorce, which means that the entire process will take longer and cost more.

Fault as a factor in awarding alimony. In some states, the laws specifically allow judges to consider a spouse's misconduct—especially adultery—when deciding whether to award alimony and, if so, how much the alimony should be and how long it should last.

Fault as a factor in dividing property. In some states, judges may also consider either spouse's bad behavior as a factor when dividing property in divorce. But this usually becomes an issue only if the misconduct affected the amount of assets available for distribution, such as when a spouse wasted marital funds on a gambling addiction or an extramarital affair.