Fault and No-Fault Divorce: An Overview

The difference between fault and no-fault divorce can be substantial and which one applies to you depends on where you live. The article below examines the differences and provides options that may be available in your situation.

No-Fault Divorce

A no-fault divorce refers to a type of divorce in which the spouse that's filing for divorce doesn't have to prove any fault on the part of the other spouse. The most common ground for a no-fault divorce is "irreconcilable differences" or an "irreparable breakdown of the marriage." A spouse cannot object to another's petition for no-fault divorce, as that objection itself can be viewed by the court as an irreconcilable difference.

All states recognize no-fault divorces, but some states require that the spouses live separately for a designated period of time before either of them can file for a divorce.

Fault Divorce

Fault divorces are not as common and, in fact, most states no longer even recognize them. In the states that do recognize them, a spouse can requests that a divorce be granted based on some fault of the other spouse. The most common grounds for granting a fault divorce are:

  • Adultery;
  • Abandonment for a certain length of time;
  • Prison confinement;
  • A spouse is physically unable to have sexual intercourse; or
  • The other spouse has inflicted emotional or physical pain (cruelty).

Another key difference between fault and no-fault divorce is that spouses filing a fault divorce are not required to live apart for a specific period of time before filing. The ability to prove fault in a divorce case can also lead to a larger distribution of the marital property or support to the spouse that was without fault. These two characteristics make a fault divorce more attractive to some people.

Fault Divorce: Comparative Rectitude

When both spouses seek a fault divorce and can both prove the other spouse is at fault, the court decides which one is least at fault. That party will be granted the divorce. This is called "comparative rectitude." This doctrine was created to address the problem of courts granting neither party a divorce if they were both at fault. Courts have a public policy interest in not forcing two people to stay married if they don't want to be.

Fault Divorce: Defenses

Unlike a no-fault divorce, a spouse can object to a fault divorce by disproving or presenting a defense to the fault complained of. The following is a list of common fault divorce defenses:

  • Connivance is an absolute defense to adultery. Connivance alleges that the complaining spouse agreed to and even participated in the adultery or created the opportunity by enticing someone to seduce the spouse.
  • Condonation is a claim that the other spouse knew about the complained of conduct, forgave such conduct, and resumed the marital relationship. This is typically used to defend an adultery accusation.
  • Recrimination is when the complaining spouse is equally at fault or engaged in similar conduct. For example, if both spouses had affairs, neither one would be able to use adultery as grounds for a fault divorce.
  • Provocation is where one spouse provoked the other spouse to act in a certain way. For example, where one spouse abuses the other spouse, which forces that other spouse to leave the marital home, the abusive spouse would not be able to then use abandonment as grounds for divorce, since it was his or her abuse that caused the other spouse to leave.
  • Collusion refers to an agreement between both of the spouses to fabricate the grounds for divorce. If one of the spouses changes his or her mind, collusion could be raised to lessen the original grounds for the fault divorce.

Proving any of these defenses can be costly, timely, and often involves the use of witnesses. Furthermore, courts have an interest in not forcing people to stay married, and will usually grant divorces to people who ask, despite defenses given by the other spouse. These reasons typically deter people from attempting defenses.

Fault and No-Fault Divorce: Residency Requirements

Because state laws vary regarding fault and no-fault divorce, it's important to understand where you or your spouse could potentially file for divorce. Most states have a residency requirement, meaning that at least one of the spouses must have been a resident of that state for a specified length of time--usually six months to one year--in order to file for divorce there. However, Washington, South Dakota, and Alaska have no required length of time. To file in one of those states, you merely need to be a resident of that state at the time you are filing.

It's in your best interest to have your divorce filed in the state you're living in. Whichever court orders the divorce decree is the same court that must hear all other matters, including changes. For example, if your spouse files for and receives a divorce in Illinois, and the two of you want to revise your child custody arrangement, you must return to that Illinois court that granted the initial divorce.

Validity of Divorces Among States

Courts of all states like to honor decisions made by courts of other states, because they want the same respect paid to their decisions. Therefore, going back to the preceding example, if your spouse files in Illinois, this divorce and all of the court orders related to it, apply to you in your Missouri home.

However, the court may not have personal jurisdiction over the nonresident spouse at the time of the divorce proceeding, rendering certain court decisions invalid. A lack of personal jurisdiction means that although the divorce decree may be valid, other related decisions, such as child custody, support, and property division, may be invalid.

If you receive papers from a foreign country, keep in mind there are many jurisdictional issues, such as what country is involved, where the spouses live or have lived, and where the children (if any) live.

Whether You're Facing a Fault or No-Fault Divorce, an Attorney Can Help

The concepts of a fault and no-fault divorce are state-specific and can also be confusing. If you aren't sure of the laws in your jurisdiction, your best course of action is to first speak with an experienced divorce lawyer who can go over the laws of your state, how they apply to you, and the best legal options going forward.

Next Steps

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