No Fault vs. Fault Divorce
Deciding to end a marriage can involve several legal considerations. One of the earliest decisions often concerns whether to file on a fault or no-fault basis if your state offers both options. In a no-fault divorce, spouses do not accuse each other of wrongdoing and simply indicate that the marriage is no longer workable. In a fault divorce, the spouse who files must show that the other has committed specific acts that justify ending the marriage.
What Is No-Fault Divorce?
Most states allow couples to obtain a divorce without claiming misconduct, commonly stating that the marriage is irretrievably broken. The notion of an irretrievably broken marriage means that the spouses can no longer maintain a functional relationship. Some jurisdictions require a waiting or separation period as a step toward confirming that the spouses will not reconcile. These requirements vary widely among states, with some mandating several months of separation and others imposing shorter waiting periods.
What Is Fault Divorce?
Fault divorces require the filing spouse to allege specific wrongdoing, such as cruelty (physical or emotional), adultery, or abandonment. Other recognized grounds may include prolonged imprisonment or undisclosed impotence. When fault is proven, and the legal requirements are satisfied, the divorce can sometimes be granted more quickly than a no-fault divorce, although the process becomes more complex if the accused spouse contests the allegations. Litigation in a fault divorce often involves gathering testimony and evidence, which may lead to greater emotional strain for both spouses.
Defenses in a Fault Divorce
A spouse accused of wrongdoing may respond with defenses that challenge or explain the behavior. If the events did not occur, the defense focuses on disproving the claims. A spouse also may argue that the other partner forgave or accepted certain acts, known as condonation. The defense of connivance involves showing that the accusing spouse encouraged or arranged the situation that led to the misconduct. Provocation may be argued if the accused spouse was instigated into acting improperly, and collusion refers to an agreement between spouses to fabricate wrongdoing.
Does Fault Affect Property Division or Support?
Even when fault is not the basis for the divorce, a spouse’s misconduct may still affect property division or support awards. In some jurisdictions, if one spouse uses marital funds for an extramarital relationship, the court may adjust property division to compensate the other spouse. Certain courts may also consider misconduct when awarding or calculating spousal support, particularly if one spouse’s actions caused tangible financial harm.
Does Fault Affect Child Custody?
Allegations of misconduct, especially those involving abuse, can have a broader impact when children are involved. Courts generally focus on the child’s best interests, and serious acts of cruelty or neglect may influence custody decisions. Some courts closely examine whether a spouse’s behavior endangers or otherwise harms the child during custody and visitation determinations.
Evidence and Documentation
Parties in both no-fault and fault divorces often gather financial records, communications, and other evidence to support their positions. In a fault divorce, this type of documentation can be critical in proving or disproving allegations. Witness statements, correspondence, and financial data may be analyzed to determine if misconduct occurred or to show that specific claims lack merit.
