No-Fault Vs Fault Divorce — the Differences Explained
When you have decided to file for divorce, you will have to indicate the reason why your marriage is ending on the divorce petition. In some states, you have the option to file either for a fault or a no-fault divorce, while in other states, you are only allowed to file for a no-fault divorce. So, what is a fault divorce and a no-fault divorce, and what is the difference between the two?
What Is No-Fault Divorce?
A no-fault divorce means that neither spouse has to prove that the other is guilty of the marital breakup. In other words, it is no one’s fault that the relationship has come to an end. All states allow the no-fault option, although the grounds (a.k.a. reasons) for the divorce vary from state to state.
For example, the no-fault grounds for divorce in your state might be called:
● Irreconcilable differences
● Incompatibility, or
● Irretrievable breakdown of the marriage
No matter what your state calls the basis for no-fault divorce, they all mean that you and your spouse cannot move forward together, and it is best to go your separate ways. Keep in mind that some states would require you to live apart for a period of time before the judge can grant your divorce.
No-fault divorce is generally the less expensive and time-consuming option (granted that there are certain exceptions) because it does not require spouses to prove the marital misconduct of the other spouse before the court.
What Is a Fault Divorce?
There are two necessary conditions for a court to grant a fault-based divorce:
1) At least one spouse must prove the other spouse’s misconduct that led to the end of the marriage
2) Fault-based divorce must be allowed in the respective state
Some of the most common grounds for fault-based divorce include:
● Adultery
● Incurable insanity
● Cruelty (inflicting unnecessary physical or emotional pain) — abuse is the most frequently used ground for divorce
● Abandonment for a period of time
● Physical inability to engage in sexual relations if the spouse did not disclose that information before the marriage
● Confinement in prison
There are many reasons why spouses choose the fault-based divorce option. For people in a state that requires them to live separately from their spouse for a period of time before the court allows no-fault divorce, a fault-based divorce is a faster solution.
In some states, if a spouse successfully proves their partner’s fault, they might receive more alimony or a more significant share of the marital property. In most cases, however, regardless of the specific grounds for a fault-based divorce, the choice of the initiating spouse is prompted by hurt feelings. If you are considering filing for a fault divorce, it is best to hire an attorney because the process of proving the other spouse’s fault is complex, and it is easy to make costly mistakes.
Can You Prevent a Fault-Based Divorce?
You cannot prevent the court from granting you and your spouse a no-fault divorce. Simply objecting to your spouse’s request for divorce is an irreconcilable difference in itself, and it thus justifies the divorce. However, you can prevent a fault divorce if you can convince the court that the allegations of fault made by your spouse are false.
Or, you can admit to the wrongdoing you have been accused of but also present a reason for your behavior, such as:
● Condonation — it basically means a person approves of another one’s actions. For example, a husband that did not object to his wife’s adultery can mean that he condoned it. If the husband seeks a fault-based divorce claiming that his wife has committed adultery, she can fight the claim by stating that he condoned her behavior.
● Connivance — when a person sets up a situation that prompts another person to commit a wrongdoing, it is called connivance.
● Provocation — similar to connivance, provocation occurs when a spouse encourages the other spouse to do something bad.
● Collusion — couples that wish to get a divorce and live in a state that requires a separation period for a no-fault divorce might try to “manufacture” a reason for a fault-based divorce.
Now that you know what no-fault divorce and fault-based divorce are, you can make an educated decision if and when you consider divorcing your spouse. By getting an experienced attorney, you will have peace of mind that your interests are protected during the separation process.
Family Law FAQ
With major life events and changes, it’s always a good idea to consult a lawyer. Getting through a divorce may also be a very stressful project and you need someone experienced to protect your rights as well as protect your children’s rights (if you have any). Here at Legal Chiefs, we can get you in touch with someone current with the laws in your state concerning divorce, marriage, marital property, child custody, visitation, and family support
The grounds for divorce may be based on no-fault or fault depending on the state, but no-fault divorce is available in some form in all 50 states. Most of the states also have fault-based grounds as an additional option.
A no-fault divorce is one in which neither of the partners blames the other for the breakdown of the marriage and common bases for no-fault divorce may be “incompatibility,” “irretrievable breakdown,” or “irreconcilable differences.” Suppose the parties have lived separately for a certain period with the intent that the separation is permanent. In that case, it is another common basis of no-fault, but once again, the specifics vary from state to state.
With a fault-based divorce, the list of grounds may include physical cruelty, mental cruelty, adultery, attempted murder, habitual drunkenness, desertion, use of addictive drugs, impotence, insanity, and infection of one’s spouse with venereal disease.
While every divorce starts with a bit of bitterness, statistics show that most of the cases are settled without the need for a judge to decide on a property or other issues. In most cases, spouses are free to divide their property as they see fit in what is called a “marital settlement agreement”, a contract between the married couple that divides property and debts and resolves other divorce issues. However, having a family law attorney is still recommended, and in case the division of property cannot be settled, then the court must make the determination. Once again, the specifics vary from state to state, but many states allow both parties to keep their separate and nonmarital properties as a starting point.
Another thing to know about assets and divorce is how dividing marital or community property works. Again, each state has its specifics, and some states are community property states by definition. For example, the state of California divides equality marital property unless a premarital agreement specifies otherwise. However, most states apply the “equitable distribution” concept where the court divides the marital property as it thinks fair. This doesn’t necessarily mean a 50-50 division. The common factors considered by the court include the amount of nonmarital property, each spouse’s earning power, waste and dissipation, fault, services as a homemaker, duration of the marriage, age, health, and others.
When parents can’t agree on custody of their child/children, the court will decide custody based on “the best interests of the child.” There are many factors involved, not one of which is considered the most important.
Joint custody has two parts - joint legal custody and joint physical custody, and a joint custody order can have both or one of the parts.
● Joint legal custody refers to both parents sharing the significant decisions regarding their child/children, which usually include school, health care, and religious training. Other decisions may include summer camps, extracurricular activities, the age for dating or getting a job, discipline methods, etc.
● Joint physical custody refers to the time spent with each parent. The amount of time is flexible and can range from dividing the time between the two parents’ equality to visits every other weekend, and so on. The residing addresses of the parents are often considered, and living close is important, especially in situations where the time spent with both parents will be divided equally.
Since 1965, all 50 states and the District of Columbia have enacted legislation enabling grandparents to petition the courts for visitation rights with grandchildren. However, granting such rights is not automatic, and in most cases, grandparents merely have grounds for asking for a visitation order. Most commonly, a grandparent may petition for visitation after the death of a parent or upon divorce of the parents. Some states allow petitions when the child has previously lived with the grandparent, a child is born out of wedlock, and when a parent is incarcerated.
Unlike most legal matters where specifics depend on the state, talking to a judge separately is prohibited in all 50 states. All communication with the judge takes place on the record during a hearing. This is a way of ensuring fairness to both sides, and just as you would not want the judge to talk to the other party without you being present, the judge is not allowed to talk to you without the other party being present.
Only before a judge has done anything on the case, each party files one “peremptory challenge.” It costs $450, and there is no way to waive this fee. A new judge will be randomly assigned to your case, meaning you cannot pick the new judge. Be careful with the strict timing requirements for filing a peremptory challenge, as the money spent on a challenge is not refunded.
