February 2, 2023
What is the difference between a fault and no-fault divorce? Divorce laws differ in every state in the country. In Hawaii, for instance, you and your spouse have to be separated for at least two years before you can be legally divorced, while in other states, you can be divorced without any prior separation.
Another aspect that differs by state concerns the laws concerning fault, and these differences will significantly affect what kind of evidence your divorce lawyer needs when you go to court. Before consulting with a divorce attorney, you should research the fault rules for the state you live in.
Fault Divorces
A divorce is considered to be a fault divorce, in particular, if there is a reason for the divorce that can be attributed to only one of the two parties. Typically, in a fault divorce, one of the parties wishes for a divorce, and the other does not, which will require you to receive a court order for the divorce by proving the grounds of fault at trial.
Every state has different standards for what constitutes a fault, and a good divorce lawyer will know the exact standards for the state you live in and what evidence is necessary. Typically, though, the following are grounds for a fault divorce:
Incarceration
Most states allow you to file for fault-based divorce if your spouse spends a significant amount of time in prison. The exact amount of time that your spouse needs to be imprisoned for a fault divorce to be considered varies in every state, so you should consult with a divorce attorney to determine what that length of time is where you and your ex-spouse reside.
Spousal Abuse
Unfortunately, domestic abuse is one of the most common forms of assault in the U.S., and if your spouse engages in any sort of emotional or physical abuse against you, you can file for a fault divorce. Unfortunately, your divorce lawyer will need to provide proof of this abuse in court, which means that it will become public knowledge.
Typically, before filing for divorce, you should file for and receive a restraining order or order of protection against your spouse, and such evidence will help your divorce attorney prove the abuse at trial.
Impotence
While not all marriages involve sex or children, most state laws assume that these things are fundamental aspects of marriage, and due to this assumption, many states define impotence as a viable reason for a fault divorce. Similarly, in some states, infertility is grounds for divorce as well.
Adultery
Adultery is arguably the most commonly cited reason for a fault-based divorce. If you or your spouse break your marriage vows by cheating, most courts will consider that grounds for divorce, even if the other party doesn’t want to be divorced.
What counts as adultery is also something that is different in every state. Some states require a person to actually have sex with another person for it to count as adultery, while others only require one of the parties to engage in activities generally understood as being unfaithful for a divorce to be considered.
Furthermore, even if your spouse has committed adultery, you could lose your ability to use that knowledge as a reason in court if you have forgiven the adultery or resumed having sex with your spouse. Even if you aren’t certain that you wish to divorce right away, you should consult a divorce lawyer as soon as you become aware of adultery.
Abandonment
Even if you aren’t legally separated, and your spouse isn’t in prison, if they live apart from you for an extended time, you might have grounds for divorce. Typically, abandonment claims also require some proof that your partner is indeed abandoning their responsibilities to the marriage as well.
Note that abandonment is a different legal concept than separation. Separation can also be grounds for an at-fault divorce in some states, but typically, it entails that both parties are at-fault, whereas abandonment usually only applies to one person in the marriage.
No-Fault Divorce
A no-fault divorce doesn’t require any of the previous factors to be true. As the name implies, a no-fault divorce can occur for any reason or even no reason at all. Typically, in a no-fault divorce, both parties agree that they wish to be divorced and provide no reason to the court as to why.
While both parties usually agree to the divorce, it is still possible to have the court order a no-fault divorce even if your spouse doesn’t want to be divorced. Such a scenario will make for a more complicated process, but divorce lawyers deal with this regularly.
Every state allows for no-fault divorces, even as some states don’t allow at-fault divorces. In states that only allow no-fault divorces, you can typically still provide a reason for the divorce to the court if one exists, but it won’t change the nature of the divorce proceedings.
Advantages and Disadvantages
Assuming you have the ability to choose between an at-fault divorce and a no-fault divorce, you should carefully consider the advantages and disadvantages of each.
No-fault divorces can be advantageous because they typically:
- Take less time than at-fault divorces
- Don’t require going to trial
- Are less likely to reveal private details of the marriage
- Cost less than at-fault divorces
Conversely, at-fault divorces offer advantages as well.
Typically, they:
- Allow you to easily force a divorce when your spouse opposes
- Increase the likelihood that you can get full custody of children
- Can result in much higher alimony or childcare payments
When consulting with a divorce attorney, you should ask about the costs and likely outcomes of both options. While many opt for an at-fault divorce just to punish a cheating spouse, this often won’t result in the outcomes they want, both in terms of financial compensation and in terms of potential custody.
All Types of Divorce Require an Experienced Divorce Attorney
Regardless of the state you live in, or the reason why you are getting divorced, an experienced and competent divorce lawyer is essential. A divorce lawyer will guide you through the process and fight to get you an optimal result.
Divorce is emotionally draining and financially terrifying, but a great divorce attorney can reduce a lot of your stress and simplify the process. Once you make your needs known, they will be able to tell you whether you are better off with an at-fault divorce or a no-fault divorce.