If you are initiating a divorce, you may need to decide whether you are petitioning for divorce on fault or no fault grounds. Every state in the U.S. now has some version of no-fault divorce that parties can take advantage of if it fits their situation. However, some states require the parties to live apart for a period of time before the divorce can be granted. With a fault divorce, there is no required waiting period and the divorce may be granted as soon as the court is able to approve it. If one party disagrees with the fault grounds, this may require proving the grounds in court.
Conversely, some states no longer even allow fault divorces. In those states couples must file under the no-fault provisions. Different states have different residency requirements before a petition for divorce can be filed. The court where the petition is filed first will handle the case, provided that they have jurisdiction over the matter.
There is a difference between alleging fault as a ground for divorce and alleging fault as a consideration for property division or support. In some states, a spouse may ask a judge to consider fault in awarding property and support even during a no-fault divorce.
As noted above, many states do not allow fault divorces anymore. In the states that do allow fault divorces, the specific fault grounds that are available may vary a bit. However, they tend to cover similar ground. The most common ground alleged by a spouse in a fault divorce is cruelty. This includes both mental and physical cruelty.
Another common fault ground is adultery, and abandonment is another that some states acknowledge. Some states recognize emotional as well as physical abandonment, but others do not. There is a certain time period that one spouse needs to have deserted the other spouse for it to qualify as desertion. Other statutory fault grounds that some states recognize are incarceration for a certain period of time, and an inability by one partner to engage in sexual intercourse that was not disclosed to the other spouse before the wedding.
Defenses to Fault
In states where one spouse is free to allege a fault ground when seeking a divorce, the accused spouse is able to offer defenses to the allegations. There are a few common defenses to these accusations. One of those defenses is condonation. Condonation means that the accusing spouse approved of the other spouse’s actions while they were happening. Another defense is connivance, which means that the accusing spouse arranged the circumstances so that their spouse would engage in the activities now complained of. Provocation is another defense. Provocation refers to one spouse inciting the other spouse to do something. Finally, though less frequently used now that all states allow no-fault divorce, another defense is collusion. Collusion means the spouses are working together to manufacture a fault ground so they do not have to follow the rules around waiting periods for no-fault divorce. A spouse can also defend the claims by proving that the complained of behavior did not actually happen.
Common Defenses to a Fault Divorce
Innocence / Inculpability
Differences Between Fault and No-Fault Divorce
A no-fault divorce essentially represents the notion that a couple’s marriage did not break up due to the wrongdoing of one person, but instead that there are differences between the couple that cannot be reconciled. Different states use different language in their statutes, but the language often includes phrases such as “irretrievable breakdown of the marriage,” or “irreconcilable differences.”
States are moving towards no-fault grounds and away from fault grounds. However, some people still choose to allege fault grounds instead of no-fault grounds if the state allows it. This is because in some states and in some circumstances a finding of fault may affect the divorce settlement.