No-Fault vs. Fault Divorce

By September 20, 2018Blog
Fault vs No Fault

If you are getting divorced, you might feel that the dissolution of the marriage is primarily the fault of your spouse. At the same time, he or might think that it is your fault! The reasons that a divorce becomes inevitable vary widely and most divorces have several reasons. Legally speaking, however, there are states that allow one spouse to claim a “fault” divorce and states that do not allow it. Read on to find out more about the differences between fault divorces and no-fault divorces as well as why this determination might affect your divorce.

 

What Is Fault Divorce?

In many states, individuals seeking a divorce can file a fault divorce. This means that they are claiming that their spouse has acted in a way that has made divorce the only (or most feasible) option. The reasons for fault divorce might include:

  • Infidelity, meaning one spouse has had sexual relations with someone other than their spouse
  • A wife who is pregnant by another man at the time of the marriage without the husband knowing about it
  • Abandonment, which usually must be for a certain period of time
  • Physical, mental, or sexual abuse
  • Substance abuse
  • The inability to have sexual intercourse
  • Insanity, which must be documented by a medical professional
  • Incarceration, depending on the length of time that the spouse is sentenced to

Not every state that allows for fault divorce will accept all of these reasons, and there may be other reasons that are allowed in your state.

 

What Is No-Fault Divorce?

No-fault divorce is when an individual files for divorce and does not place any blame on his or her spouse. This is the most common type of divorce. Even if you or your spouse has been unfaithful, abusive, or meets some other criteria for a fault divorce, you can still file for a no-fault divorce. In some states, it doesn’t matter whose fault it is; all divorces go through as no-fault.

You will often still need to provide a reason for the divorce. No-fault reasons include:

  • Separation for a set period of time
  • Irreconcilable differences
  • Irretrievably broken marriage

There are other wordings as well; each state has its own preferred vernacular, and you must use the correct language depending on the state. Overall, however, they mean the same thing: The marriage has broken down and it is impossible for the spouses to put it back together again.

 

Why Choose Fault vs No-Fault?

Each state has its own rules for determining whether fault divorces are allowed. If you live in California, Colorado, Florida, Hawaii, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, Oregon, Washington, Wisconsin, or the District of Columbia, then your decision is made for you, because these states only allow for no-fault divorce. There may be grounds for unusual circumstances in your state, however. This is something to ask your legal advocate about.

If you live in another state, however, you will have the option of choosing a fault divorce. First, look to see whether your reason is accepted as a reason for fault. Since each state’s list of legitimate fault reasons is different, you might not be able to file for a fault divorce that applies to your case. In that instance, you will probably have to file for a no-fault divorce.

You might wonder if it really matters whether you file your divorce as fault or no-fault. The answer is that it can in some cases. First, getting a fault divorce is more difficult than getting a no-fault divorce. This is because you will need to show evidence that what you are alleging is true. However, the tradeoff is that if you are granted a fault divorce, then alimony, property allocation, and other types of payments might be altered depending on how much the judge thinks the alleged infraction(s) contributed to the breakdown of the marriage.

Another reason to consider pursuing a fault divorce is that there is no waiting period to have the divorce finalized. In some states, however, a no-fault divorce comes with the requirement of a waiting period. While in some cases the waiting period might be only weeks, in others, the waiting period can be up to two years. For someone who is eager to put a difficult situation behind them, a fault divorce can be the faster option.

 

What If Both Spouses Claim the Other Is at Fault?

While there might be a clear-cut reason for one spouse to claim a fault divorce, such as infidelity, there might be a less clear reason that the other spouse might also claim a fault divorce. For example, the unfaithful spouse might have been led to commit adultery due to the other spouse’s mental cruelty.

If this happens, a judge will need to decide who is at greater fault. In some cases, the judge might determine that neither spouse is any more or any less guilty than the other. In this situation, both spouses will receive roughly equal settlements. If one is found more at fault than the other, the one less at fault might receive a better settlement of property or support.

There are also reasons that a spouse might claim that although they did commit whatever infraction they are accused of, it is not their fault that the marriage dissolved. For example, if a wife accuses a husband of being unfaithful but then resumes sexual activity with him after discovering the infidelity, that can be considered a defense of forgiveness.

Deciding whether to pursue a fault or no-fault divorce can be difficult and stressful. A legal advocacy group like National Family Solutions can help you decide which course of action is better for your particular circumstances and in your state. We have helped countless husbands, wives, mothers, and fathers get the best and most fair settlement available. Contact us to find out whether we are the right choice for your legal resource needs.

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