Fault and No-Fault Divorce

You don't have to prove fault to get a divorce. But it's still relevant sometimes.

It used to be the rule that a spouse asking for a divorce had to prove that the other spouse did something wrong that caused the relationship to break down. Even when both spouses were equally eager to get out of the marriage and the divorce was uncontested, the couple had to decide which of them would take the legal blame, and then decide which of the fault grounds they would use in asking the judge to grant the divorce. Adultery was the most popular choice, but abuse, abandonment, extreme cruelty (inflicting unnecessary emotional or physical suffering on the other spouse), and the physical inability to engage in sexual intercourse that wasn’t disclosed before marriage also made the list.

These days, no-fault divorce is pretty much the law of the land. New York was the last to join in, but now every state offers the option of “no-fault” divorce—and in many states, no-fault is the only option. There’s no blame placed in a no-fault divorce—instead, the spouse who files the divorce can allege that the two parties have “irreconcilable differences” or that they have suffered an “irremediable breakdown” of the marital relationship.

In some states, however, in order to get a no-fault divorce you must also have lived apart for a specified period of time.

Covenant Divorce

If you entered into a “covenant marriage” in Arizona, Arkansas, or Louisiana, you must request a divorce on fault grounds—you may not use no-fault divorce procedures. You’re required to engage in marital counseling before you can file for divorce, and the waiting period before your divorce is final may be longer than that for a noncovenant marriage. You’ll definitely need a lawyer’s help, especially if you and your spouse disagree about getting a divorce.

And remnants of the old fault system still remain in some states, you have a choice of using fault or no-fault grounds for divorce. Even if you choose no-fault, some of these states’ courts still use fault as a factor in dividing property and determining custody and support. This basically means that one spouse may accuse the other of misconduct and argue that it should affect support awards or the division of property.

It’s unlikely you would choose to file for divorce on any of the fault grounds if your divorce is uncontested. The only reasons you might choose a fault divorce are if you don’t want to wait out the separation period, or if you anticipate a major fight over property or support. However, if you do intend to argue that fault should factor into property division or support, make sure you use the right forms and check the right boxes when you file your initial court papers. And if you’re going for a fault divorce, you’re likely to need a lawyer’s help.

Adapted from Nolo's Essential Guide to Divorce, by Emily Doskow.

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