Fault vs No Fault: What Are the Legal Grounds for Divorce?

Between 40-50% of marriages in the United States end in divorce, so if you're looking for a divorce lawyer, you certainly aren't alone. If you're planning on getting a divorce, you'll need to know the basics, like if you want a fault or a no-fault divorce.

Are you unsure what those terms mean? Or simply not sure which option is right for you? That's okay, we can help!

Read on to find out the differences between these two types of divorce to find out which one you'd prefer.

No Fault Divorce

This is by far the more common type of divorce, and it's available in every state. In a no-fault divorce, no blame is placed on either spouse. You simply have to provide legal grounds for the divorce. 

A benefit of no-fault divorce is that it can be a one-party agreement: the other spouse can't stop it since objecting to the reason for the divorce would fit the definition of an "irreconcilable difference".

However, several states require that you have been separated from your spouse for a certain length of time prior to the divorce. For example, in Louisiana, you must be separated for at least six months prior to filing for a no-fault divorce.

Grounds for a no-fault divorce can include:

  • living separately,
  • a broken marriage,
  • a marriage breakdown, or
  • (most commonly) "irreconcilable differences".

In summary, a no-fault divorce is a simple divorce option that doesn't require you to prove anything and doesn't require the approval of the other spouse.

However, if you're looking to get divorced quickly, realize that you may have to be separated for months or years before filing.

Fault Divorce

In an at-fault divorce, the filing spouse blames the other spouse for their ruined marriage. However, realize that not every state has the option of a fault-based divorce. Here's a list of those 22 states that do permit a fault divorce.

If one of the required grounds are present, an at-fault divorce may be granted. These grounds include:

  • adultery,
  • abuse/cruelty,
  • abandonment/desertion, 
  • incarceration, and
  • impotence.

Note that certain states will also have additional grounds, such as insanity and substance abuse.

There are also certain accepted defenses to these grounds.

  • Connivance, which claims the adultery was sanctioned by the spouse.
  • Provocation, which claims one spouse provoked the other (for example, an abusive spouse forced an abandonment situation because the spouse no longer felt self in his or her own home).
  • Condonation, which claims the conduct had been discussed before and the other spouse still agreed to resume the marriage.
  • Collusion, which claims the spouses fabricated the grounds to divorce so an at-fault divorce could be granted and then changed his or her mind.
  • Recrimination, which claims the other spouse is engaged in similar conduct (for example, both spouses were having an affair).
  • If both spouses are at fault, whichever one is least at fault is granted the divorce. This situation is called comparative rectitude.

In general, an at-fault divorce is more difficult to obtain, since proof of these grounds is usually required. However, one benefit is that whichever spouse is proven to not be at fault often gets more of the marital property or support.

Sometimes, adultery is used as grounds to deny alimony to a cheating spouse.

Need a Divorce Lawyer?

Whether you want an at fault or no-fault divorce, at Bowie & Beresko, we have all the legal tools to make sure that your divorce goes as smoothly as possible. Contact us to schedule a meeting today!

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