Today, almost all divorces are “no-fault,” meaning that neither spouse did anything legally wrong, the couple simply wants to split up and go their separate ways. That does not mean that “no-fault” is the only grounds for divorce, though.
Most modern divorces are no-fault
For most of American history, one spouse had to show the other spouse committed some type of wrongful act in order to get divorced. That was very problematic. Research shows that most couples get divorced for reasons that do not have an easy right or wrong. The most common reason for divorce, cited in 75% of marriages, is “lack of commitment.”
That is a little vague, but essentially one or both spouses “fall out of love” and start to see the other spouse as more of a roommate than a lover. This is not really an issue where either spouse did anything legally wrong.
There are many other factors divorcing people cite that are not necessarily right or wrong, including too much conflict (57%), being married too young (45%), and financial problems (36%).
In the 1970s and 80s state legislatures across the country created new no-fault grounds for divorce, most often called “irretrievable breakdown” or “irreconcilable differences.” A couple simply has to want to get divorced, and in some states also go through a waiting period. Some states require divorcing parents to take child care classes. The bottom line, though, is there is really nothing preventing the divorce of a couple that wants to split.
Fault grounds still exist
In the old days, when divorce used to require one spouse to be at fault, lawmakers just did not want couples just splitting up and going their separate ways. Splitting couples were required to stay married unless there was abuse, adultery, or similar wrongful conduct. This led to a nonsensical system, where a couple that wanted to split up would often hire a woman to participate in a fake affair so that the couple could get a divorce on the grounds of adultery.
People still report getting divorced for what sounds like fault reasons. This includes adultery (59%), substance abuse (34%), and domestic violence (23%). These are still valid “fault” grounds for divorce in many states.
For example, in Ohio, the fault grounds for divorce include
(2) Extreme cruelty
(3) Habitual drunkenness
Getting a fault divorce will typically require you to prove that wrongful conduct occurred, though, and there is rarely any reason to go through that trouble. Instead, if a spouse dealing with adultery wants to get divorced they will almost always go for a no-fault divorce.
Fault often plays into no-fault divorce
Just because a couple is getting a no-fault divorce does not necessarily mean that wrongful conduct is forgiven. When dividing property, courts will usually split the assets about equally between each spouse, but in many states, the judge is required to consider altering the split after considering a number of equitable factors. These include things like the age and health of each spouse, as well as their earning potential.
Misconduct can also be a factor, though. In Alaska, for example, a judge must consider the “conduct of the parties, including whether there has been an unreasonable depletion of the marital assets.”
So if one spouse was spending money to keep up an affair, the other spouse is probably going to be compensated for that lost money.