What Is the Difference Between a "Fault" and a "No Fault" Divorce?
There are several reasons why a marriage does not work out and one or both spouses wants to get a divorce. A couple could be divided based on the actions of one spouse, like having an affair, gambling the family finances, or substance abuse problems. However, many couples grow apart over time and are ready to separate even if no one person was at fault.
The laws of divorce vary by state, so your best bet is to check with a divorce expert in your specific state.
All states now allow for “no-fault” divorce, without the need for the couple to blame the other for the breakdown in the marriage. Some states still allow for at-fault divorce based on the misconduct of one spouse.
Sometimes people confuse fault/no-fault divorce with contested and uncontested divorce—these are different concepts that you can read about here.
Historically, the couple had to provide a reason for seeking a legal divorce. There were limited grounds for divorce. States required a showing that one spouse was at fault for the break-down of the marriage, limited to:
- Cruel treatment
- 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 option of no-fault divorce for all states. Some states that allow no-fault divorce still permit divorce with a showing of fault claimed by one spouse. 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.
The following states, as well as the District of Columbia, currently allow fault-based divorce:
- New Jersey
- New York
- North Carolina
- South Carolina
Different states have different requirements for a divorce, including minimum residency requirements, separation period of time, and claiming incompatibility or irreconcilable differences. All states provide that a couple can get divorced without a showing of fault. There are many benefits of no-fault divorce, including:
- Maintaining a relationship for children
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 of public recrimination. For example, when one spouse accuses the other on grounds of adultery, the accused spouse could make a similar accusation, which could further complicate 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 custody. 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 because of minor children. Couples with shared 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 maintain a civil relationship, which can be more difficult after a contentious 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.
In Pennsylvania, the court can grant a no-fault divorce after 90 days if both spouses consent to the split. If one person refuses to agree to the divorce, the courts can still grant a no-fault divorce if the parties have lived separately for two years. In Nebraska, you have to be a resident of the state for at least a year and show that there is an irretrievable breakdown in the marital relationship with no chance for reconciliation.
Generally, one spouse cannot stop a no-fault divorce. If the non-filing spouse does not consent to the divorce, they may be able to delay the proceeding but usually cannot stop the divorce petition from being granted.
When one spouse files for divorce and the other spouse claims the marriage is not irretrievably broken, the judge may consider all relevant factors, including how long the couple has lived separately. The judge may delay the final divorce decree but generally will not order a couple to reconcile or get back together. Most courts view an objection to divorce as an irreconcilable difference in and of itself.
In a fault divorce, the non-consenting spouse may be able to stop the divorce. The spouse who is alleged to be at fault may be able to prevent the divorce by showing they are not. This can include showing the spouse has been falsely accused, or the spouse condoned their actions.
Thinking About Divorce?
Experienced divorce lawyers in our directory are here to guide you through the process, protect your interests, and help you get a fresh start.