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No-Fault vs. Fault Divorces

No-Fault vs. Fault DivorcesHave you ever wondered about the difference between a fault divorce and a no-fault divorce? If so, you’re in the right place. Until terms like this matter to us, we may tend to gloss over them in our lives. This article will answer some of the most common frequently asked questions (FAQ) about no-fault and fault divorces.

1. What is the difference between a fault divorce and a no-fault divorce?

Long ago, most states required at least one spouse to be at “fault” in the breakdown of the relationship before they would grant the couple a divorce. There were several different potential grounds for a fault-based divorce, such as abandonment or desertion, adultery, impotence, imprisonment, and physical or mental cruelty.

In more modern times, state legislatures, which set the grounds for divorce, decided to include provisions in their laws allowing couples to divorce even though no one was to blame. These laws go by different names—such as irreconcilable differences or incompatibility—but they all center on the notion that marital relationships sometimes break down even though no one is at fault. These are known as “no-fault” divorces.

2. What are some examples of reasons courts grant fault-based divorces?

The legal reasons a fault-based divorce is allowed are established in each individual state by its legislative governing body. Therefore, there is variation across the states as to what is a legal reason—known as a “ground”— for a divorce. However, here are some common grounds for divorce that span the states that still allow fault-based divorces:

  • Abandonment (sometimes known as “desertion”) for a set period of time, often one year
  • Adultery (having sexual intercourse with someone other than your spouse)
  • Impotence (the inability to have sexual intercourse)
  • Imprisonment for a set period of time, often one year or 18 months
  • Mental or physical cruelty

To obtain a divorce under for a fault-based ground, the spouse asking for a divorce for that reason must provide evidence to prove that the ground existed. In some states, when one of these grounds is proven, that may be used to increase alimony or spousal support.

3. What must be proven to receive a no-fault divorce?

The whole idea behind a no-fault divorce is that there doesn’t have to be any evidence that one spouse’s conduct caused the breakdown of the marriage. However, some state laws do require that a certain period of time has passed in which the parties could not get along and/or lived apart before granting a no-fault divorce. Usually, this period of time is between six months and one year.

When a time-based requirement like this is required under state law, the evidence must show that the requisite amount of time has passed.

4. What happens if one spouse doesn’t want a divorce?

Because all of the states now recognize no-fault divorces, one spouse cannot prevent the other spouse from getting a divorce. However, if the applicable state’s law requires that a certain period of time should pass then. the spouse who wants a divorce must wait for that time period to pass before the divorce is granted. In fact, this is one of the reasons people sometimes assert fault-based grounds. By doing so, they usually don’t need to wait for the legal time period before the divorce can be made final.

5. Are there any defenses to fault-based divorce cases?

In addition, a spouse who does not want a divorce may choose to make it more difficult emotionally and financially on the other spouse by asserting a defense in the divorce case. Not all states recognize all defenses, but here are a few of the common defenses:

  • Condonation- which means that the spouse requesting the divorce knew about the other spouse’s bad conduct but continued the marriage anyway
  • Recrimination- which means that both spouses were at fault in causing the breakdown of the marriage
  • Provocation- which means that the spouse who committed the misconduct was provoked by the other spouse.

Divorces involving defenses usually cost more, both emotionally and financially. In fact, the more spouses disagree about important issues during a divorce (such as property division, custody, and support), the more likely the divorce process will take a long time and will cost more.

6. Is there any other consequence to obtaining a fault-based divorce?

Although not all states have retained fault-based grounds for divorce, some have. In these states, there can be a strategic advantage to asserting—and proving—certain types of fault.

For example, in some jurisdictions, finding of fault may lead to a higher alimony award. Evidence bearing on issues of physical or mental cruelty may also be relevant to judicial decisions about important issues such as child custody.

If you’re considering a divorce, an experienced family lawyer who is licensed in your state can advise you about the grounds for divorce in your state and how they apply to your situation. Moving forward without the assistance of experienced divorce counsel can affect you for the rest of your life.


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