Fault and No-Fault Divorce: An Overview

The difference between fault and no-fault divorce can be substantial. The type of divorce case available to you depends on where you live.

 This article examines the differences between a fault and a no-fault divorce. This article also discusses the grounds accepted to prove fault in a fault-based divorce case.

No-Fault Divorce

A no-fault divorce refers to a type of divorce in which the spouse filing for divorce doesn't need to prove fault. The spouse considering divorce does not have to prove the other spouse did anything wrong.

All states recognize no-fault divorce. But as of 2023, only 17 states and the District of Columbia are "true" no-fault divorce states. True no-fault states do not give you the option of casting blame on fault grounds. Thus, the only option for filing a divorce case under state law in true no-fault states is a no-fault divorce.

Reasons given by parties seeking a no-fault divorce include irreconcilable differences, an irretrievably broken marriage, or an irretrievable breakdown of the marriage. These somewhat amorphous terms imply that the marriage can no longer work. The spouse receiving the divorce petition cannot object to the other party's petition for a no-fault divorce. The court can view that objection itself as an irreconcilable difference.

Usually, these states require that the spouses live separately for a designated period of time. There is a waiting period before either party can file for a no-fault divorce.

Fault Divorce

Today, fault divorces are not as common. When a spouse files a divorce petition based on fault grounds, "matrimonial offenses" are commonly given as grounds for divorce. These fault grounds include the following:

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

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

Establishing fault can result in a larger distribution of marital property in some states. The divorce process involving fault grounds can also result in alimony for the spouse who was not at fault.

Increased alimony or spousal support, and a larger share of the marital property, make a fault-based divorce more attractive to some people.

Fault Divorce: Defenses

Unlike a no-fault divorce, a spouse can object to a fault-based divorce. Through the no-fault divorce process, the spouse must disprove fault by presenting a defense. These are common fault divorce defenses:

  • Connivance is an absolute defense against adultery. Connivance alleges that the complaining spouse agreed to and even participated in the adultery.
  • Connivance also occurs when the other spouse creates the opportunity by enticing someone to seduce their spouse.
  • Condonation claims 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 could use adultery as grounds for a fault divorce.
  • Provocation is when one spouse provokes the other spouse to act in a certain way. Provocation can occur when one spouse commits domestic violence against the other spouse. Such actions may have forced that spouse to leave the marital home. The abusive spouse could not use abandonment or desertion as grounds for divorce because their abuse caused the other spouse to leave.
  • Collusion refers to an agreement between spouses to fabricate grounds for divorce. If one of the spouses changes their 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 determining who is eligible to file for divorce in that state. Usually, at least one of the spouses must have been a state resident for six months to one year to file for divorce there. Washington, South Dakota, and Alaska have no required length of time. To file in one of those states under state law, you merely need to be a resident of that state when 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 over all future changes to court orders.

For example, say you and your spouse receive a divorce in Illinois. You want to move to Missouri for a job opportunity three years later. You want to revise your child custody and child support arrangements. You must take your child custody and child support cases to the Illinois court that granted the initial divorce.

That Illinois court has exclusive, continuing jurisdiction over the divorce. This includes any modifications to child custody and child support orders. If you are given permission to move your child to a new state, jurisdiction may be transferred to that state.

Validity of Divorces Across Jurisdictions

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. For example, if your spouse files in Illinois, this divorce and all related court orders apply to you in Missouri.

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 court must have personal jurisdiction over someone to declare their rights. A lack of personal jurisdiction means that although the divorce decree may be valid, other related decisions, such as child custody, spousal support, and property division may be invalid.

Receiving papers from a foreign country also involves many jurisdictional issues. These issues can include the country concerned, 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 need more clarification on the laws in your jurisdiction, your best course of action is to first speak with an experienced divorce lawyer. An experienced divorce lawyer can review the laws of your state, determine how they apply to you, and give you the best legal options going forward.

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Can I Solve This on My Own or Do I Need an Attorney?

  • You may not need an attorney for a simple divorce with uncontested issues
  • Legal advice is critical to protect your interests in a contested divorce
  • Divorce lawyers can help secure fair custody/visitation, support, and property division

An attorney is a skilled advocate during negotiations and court proceedings. Many attorneys offer free consultations.

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Don't Forget About Estate Planning

Divorce is an ideal time to review your beneficiary designations on life insurance, bank accounts, and retirement accounts. You need to change your estate planning forms to reflect any new choices about your personal representative and beneficiaries. You can change your power of attorney if you named your ex-spouse as your agent. Also, change your health care directive to remove them from making your health care decisions.

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