What Is the Difference Between a "Fault" and a "No-Fault" Divorce?

Marriages end when one or both spouses want to get a divorce. A couple could be divided based on the actions of one spouse, such as having an affair, supporting a gambling habit with the family finances, or having substance abuse problems. However, many couples grow apart over time and are ready to separate even if no one is at fault.

Divorce law varies according to state law, so your best bet is to check with an experienced divorce lawyer in your specific state.

Understanding Divorce: Fault vs. No-Fault

All states allow for “no-fault” divorce. With a no-fault divorce, the parties do not need to blame the other party based on fault grounds. However, some states still allow for at-fault divorce based on the misconduct of one spouse.

Sometimes, people confuse fault/no-fault divorce with a type of divorce. For example, there are contested divorces and uncontested divorces.

Legal Grounds for Fault Divorce

Historically, the couple had to provide a reason for seeking a divorce. There were limited grounds for divorce. States required a showing that one spouse was at fault for the breakdown of the marriage, limited to allegations that a spouse:

• Committed adultery
• Abandonment/desertion
• Cruel treatment
• Impotence
• Drug or alcohol addiction
• Imprisonment or felony conviction
• Mental instability
• Domestic violence

Over time, states loosened the restrictions on filing for divorce, eventually adopting the no-fault divorce option for all states. Many states, including Alabama, Alaska, Arkansas, Connecticut, Delaware, Georgia, Maryland, New Jersey, New York, South Carolina, Vermont, and Virginia, permit fault-based divorce. However, it’s important to check the current laws in your state, as legal provisions can change. 

Even if one spouse thinks the other is at fault, most divorces don’t base the divorce on fault because the couple does not want their private life to be part of the public court records.

States Permitting Fault Divorces

Many states, including Alabama, Alaska, Arkansas, Connecticut, Delaware, Georgia, Maryland, New Jersey, New York, North Carolina, South Carolina, Vermont, and Virginia, permit fault-based divorce. However, it’s important to check the current laws in your state, as legal provisions can change.

Requirements for No-Fault Divorce

Different states have different requirements for a divorce. The requirements for divorce in a no-fault divorce state can include the following:

• Minimum residency requirements
• A specified period of time for separation
• Claiming incompatibility or irreconcilable differences

All states provide the option for a no-fault divorce, though the specific requirements and processes can vary. It’s important to consult with a local attorney to understand the specific laws applicable in your state.

Choosing Between Fault and No-Fault Divorce

There are many benefits of no-fault divorce, including:

• Privacy
• Simplicity
• Maintaining a relationship for children
• Avoiding a time-consuming divorce process

Divorce records are public records. When a divorcing spouse makes fault a part of the divorce filings, those divorce documents are often publicly available. Even if one spouse wants to publicly state the fault-based ground for divorce caused by the other spouse, it can open up the possibility that the accused spouse could make a similar accusation, further complicating the divorce.

No-fault divorce can also make the divorce process faster, simpler, and less costly to both spouses. Without focusing on the fault or blame for the divorce, the couple can address the issues in dispute, including marital property division, spousal support, and child support. The longer and more drawn-out the divorce process becomes, the more it can cost the spouses in time and legal services.

Many divorcing couples still have to maintain some level of connection after divorce due to having minor children. Couples with child custody may need to stay in regular contact to arrange visits, address educational issues, and maintain proper medical care. It is best for the children when the parents can keep a civil relationship, which can be more difficult after a contentious divorce.

Getting a No-Fault Divorce

What qualifies for no-fault divorce depends on where you live and the state divorce laws. For example, in Mississippi, either spouse must be a resident of the state for at least six months, and the couple has to go through a 60-day waiting period if the divorce is based on “irreconcilable differences.” Other grounds for divorce do not require a waiting period.

A spouse cannot prevent a no-fault divorce, though they may be able to delay the process or contest certain aspects, such as property division or custody arrangements. If the non-filing spouse does not consent to the divorce, they may be able to delay the divorce proceeding. But they cannot prevent the court from ruling on the divorce petition.

When one spouse files for divorce and the other spouse claims the marriage is not irretrievably broken, the judge may spend an additional amount of time evaluating the situation.

The judge may delay the final divorce decree for a certain length of time. Most courts view an objection to divorce as an irreconcilable difference in and of itself. However, such a disagreement will not stop the legal process.

Get Help From a Family Law Attorney

Whether you need help navigating a legal separation or want a divorce following the irretrievable breakdown of the marriage, a divorce attorney can help. A divorce attorney can provide legal advice during your attorney-client relationship. You’ll be equipped with options to move forward depending on your needs. Contact an experienced divorce lawyer in your area today.