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Divorce

At-Fault v. No-Fault Divorce: Pro’s and Con’s of Each

Divorce

At-Fault v. No-Fault Divorce: Pro’s and Con’s of Each

“Fault” laws for divorces vary across states and make it complicated to understand what your options for divorce really are. In this post, we break down the possible approaches you could pursue.

Author

Andrea Keith, Esq.

Andrea Keith, Esq.

Managing Partner, Keith & Highland Law, PC

Andrea graduated from Whittier Law School as a Children's Rights Fellow, Dean Merit Scholarship, Law Review and Moot Court Board. She was a junior and senior clerk for the Los Angeles County Public Defender's Office throughout law school. She was a law clerk for the Honorable Judge Ferguson of the Ninth Circuit Court of Appeal. In 2007, she worked as an attorney with the Los Angeles County Public Defender's Office. In 2016, she began her appellate work with the Second, Third, and Fifth District Court of Appeal as well as the California Supreme Court. She has continued that work today and is now in private practice.

Filing for divorce can be a difficult and stressful time even without children or property. You are deciding to end a marriage, and that decision can be emotionally and physically exhausting. The divorce laws vary across states and can be complicated to understand. Some states are “true” no-fault divorce states, some states offer at-fault divorces, and some are a combination of the two. Let’s dig in to unravel the nuances.

No-fault divorce proceedings avoid assigning “fault” for the dissolution of the marriage

A no-fault divorce process typically defines the “grounds” for the divorce to be irreconcilable differences that have caused the breakdown of the marriage. This can include that you and your spouse have tried to reconcile the marriage but have failed, and that further attempts would not reconcile the marriage.

Once the divorce petition is filed, the other spouse cannot object to the divorce on any fault ground.

In many no-fault states, the courts require that you and your spouse live apart for a period of time called a “separation period” before you can file for the divorce. Some states may require the separation period to be a few months while others may require a separation period for up to two years. A separation period must be satisfied before you can file the divorce on no-fault grounds.

This separation period is different from a “waiting period”, which is required after filing for divorce but before the court will proceed with dissolving the marriage.

“True” no-fault divorce states only allow filing on no-fault grounds

States that only allow a spouse to file on no-fault grounds are considered “true” no-fault states (California, Colorado, Florida, Hawaii, Iowa, Kansas, Kentucky, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, Oregon, Washington, Wisconsin, and Indiana). If you live in one of those states, you can only file for a ”no fault” divorce. There is no other option.

In a “true” no-fault divorce state, you and your spouse can agree to the divorce. This would be considered an uncontested divorce.

Under this circumstance, you and your spouse are avoiding a lengthy divorce proceeding and trial. An attorney could draft the settlement agreement, which is then signed by the court, and your divorce is final.

If you are filing for a no-fault divorce in a “true” no-fault state, your spouse can also choose to instead contest the divorce. If the spouse you are filing the divorce against can prove the marriage has not been “irretrievably broken,” the divorce may not proceed. This proceeding is called a “no-fault contested divorce.”

Other states offer some combination of “no-fault” and “at-fault” options

These days, all states are considered no-fault based states at minimum. Besides the seventeen “true” no-fault states mentioned above, the rest maintain a combination of no-fault and at-fault divorce options. This means you can file on either ground. You can choose to file either as a fault ground for divorce or as a no-fault ground. 

If you are filing as an at-fault ground, you will not have a separation period requirement and therefore do not need to live apart for a period of time. You simply file the petition for divorce alleging a ground for the divorce.

Once you allege the ground for the divorce, your spouse will have the option of contesting or not contesting the divorce. If they contest it, you will need to provide evidence about the ground for divorce.

For example, if you claim adultery as the ground for the divorce and your spouse contests that ground, you will need to provide evidence to the court during the trial that your spouse committed adultery in order for the court to grant the divorce.

Each state will have a different definition of adultery, but it can be defined generally as voluntary sexual intercourse between a married person and someone not the spouse.

You can provide direct or indirect evidence. An example of direct evidence would be that someone actually saw your spouse and someone else be intimate. Examples of indirect evidence would include text messages, phone calls, orders for flowers and so forth. Indirect evidence can be hard to prove, and your divorce may be denied if you cannot provide evidence.

Pros and cons of a no-fault divorce

There are a variety of reasons that you might choose to file as a fault or no-fault ground. Of course, if you live in one of the seventeen states that is only no-fault, you have no choice. But, if you live in a state that has both options, there are pros and cons to either ground.

Some of the pros of a no-fault divorce is that it is easy, cost effective, no drama, and you do not have to prove the ground for the divorce. It is a simple way to focus on the issues of child custody, visitation, property division, and alimony and not spend a lot of money while blaming your spouse for the dissolution of the marriage.

On the other hand, there are many reasons why a no-fault divorce may be a bad idea

Pros and cons of filing an at-fault divorce

As you can imagine, filing an at-fault divorce can be expensive while you litigate the basis of the divorce before moving on to issues such as custody, visitation, child support, and property division. You can spend a lot of time and money litigating the issue of fault. An at-fault divorce will always be longer and more costly.

On the other hand, if you feel that the reason your spouse is at-fault may affect the court’s ruling on property, child support, or alimony issues, you should file on an at-fault ground. The court may award you more if you can prove the basis for the fault and provide evidence to the court.

Do you need a divorce lawyer? What are your options?

The decision whether to file on fault or no-fault grounds is difficult in an already painful time. Consulting a lawyer that can help guide you through this process is often a good idea.

Hiring a lawyer is not your only path to getting legal guidance for your situation. Several lawyers and law firms have worked with Gavel to produce “legal apps” that can help you with this process:

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