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. This article examines the differences and the grounds that are accepted to prove who was at fault for a divorce.

No-Fault Divorce

A no-fault divorce refers to a type of divorce in which the spouse who is filing for divorce doesn't have to prove any fault on the part of the other spouse. All states recognize no-fault divorce, but as of 2021, only 19 states are "true" no-fault divorce states. The only option you have for filing is no-fault.

The reason given by parties seeking a no-fault divorce is "irreconcilable differences" or an "irreparable breakdown of the marriage." The spouse receiving the divorce petition cannot object to the other party's petition for a no-fault divorce. That objection itself can be viewed by the court as an irreconcilable difference.

Usually, these states require that the spouses live separately for a designated period of time before either party can file for divorce.

Fault Divorce

Fault divorces are not as common. When a spouse requests a divorce based on some fault of the other spouse, the "matrimonial offenses" that are commonly given as grounds for divorce are:

• Adultery
• Abandonment for a certain length of time
• Prison confinement
• Physical inability to have sexual intercourse, if this condition existed before the marriage and was hidden
• The other spouse has inflicted emotional or physical pain (cruelty)

A key difference between fault and no-fault divorce is that spouses filing a fault divorce are typically not required to live apart for a specific period of time before filing.

In some states that recognize fault divorce, establishing fault can result in a larger distribution of the marital property or granting of alimony to the spouse that was not at fault. In other states that require or allow fault divorce, fault is not a factor in the property settlement decision at all.

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 was 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 policy of not forcing 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. They must disprove the fault by presenting a defense. These are 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 their spouse.
• Condonation is a claim that the other spouse knew about the problematic conduct, forgave that conduct, and resumed the marital relationship. This is typically used to defend against 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 when one spouse provoked the other spouse to act in a certain way. For example, where one spouse abuses the other spouse, that may have forced that spouse to leave the marital home. The abusive spouse would not be able to 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 the spouses to fabricate a 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 and time-consuming. It often involves the use of witnesses. Furthermore, courts have a policy of granting divorces to people who ask for them, despite defenses given by the other spouse. These reasons typically deter people from attempting defenses.

Fault and No-Fault Divorce: Residency Requirements

Most states have a residency requirement that determines who is eligible to file for divorce in that state. Usually, at least one of the spouses must have been a resident of a state for six months to one year in order to file for divorce there. 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 file for divorce in the state where you live. The court that orders the divorce decree is the court that has jurisdiction for all future changes to court orders.

For example, you and your spouse receive a divorce in Illinois. Three years later you want to move to Missouri for a job opportunity. You want to revise your child custody arrangement. You will need to take your child custody case to the Illinois court that granted the initial divorce because that court has exclusive, continuing jurisdiction over the divorce and child custody order. (If you are given permission to move your child to a new state, jurisdiction may be transferred to that state.)

Validity of Divorces Across States

Courts of all states honor the decisions made by courts in other states because the Full Faith And Credit Clause of the U.S. Constitution requires it. 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.

The validity of a state court's decision comes into question when one of the spouses is not a resident of the state at the time of the divorce proceeding. The court may not have personal jurisdiction over the nonresident spouse. 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, 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 country-specific. 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 review the laws of your state, how they apply to you, and the best legal options going forward.