What is No Fault and At Fault Divorce?

Understanding the Difference

Depending upon the laws in your state, there are two basic types of divorce: no fault and at fault.

No Fault 

A no-fault divorce simply means that you are dissolving the marriage without placing blame. All states offer a no-fault solution, such as "irreconcilable differences" or "incompatibility".

No proof of the marital breakdown is needed to obtain a no-fault divorce, but many states still require that the couple live apart for a designated period of time.

At Fault 

An "at fault" divorce on the other hand, is designed to lay blame for the failing of the marriage. Not all states allow at-fault divorces but those that do typically have a set list of acceptable grounds that can be alleged.

Extramarital affairs, abuse (emotional and physical) and abandonment are commonly accepted as are claims that the spouse can no longer perform sexually or that the spouse has been incarcerated in prison for a certain length of time.

Establishing fault in a divorce usually eliminates the waiting period commonly found in no-fault divorces and can also play a major factor in the financial settlement.

Many states consider fault as a deciding factor when determining the amount of alimony that will be paid. In addition, fault is also a common component in prenuptial agreements and can be used to void or substantiate a pre-determined arrangement, depending upon the specific wording of the document.

When Both Spouses Are To Blame

Quite often, both spouses are found to be at least partially to blame for the breakdown of the marriage and in these cases, courts often rely on a principle known as "comparative rectitude". This allows the court to grant the divorce to the party who is least at fault however, property distribution and spousal support may still be influenced by the respective fault of both parties, regardless of who technically "won" the divorce.

There is no defense to a no-fault divorce - that is, the non-filing spouse cannot stop the proceedings. However, in at-fault cases, there are some acceptable defenses to specific allegations. If the defense was successful, the divorce could proceed but would most likely be treated as a no-fault case.

Which States Have No-Fault Divorce?

Most states offer a no-fault divorce solution in some form or fashion, but some states have strict requirements surrounding the law. To determine the specific requirements and laws for divorce in your state, check the divorce laws in all 50 states page and click on your state.

Alabama and Alaska for example, both allow a no-fault divorce but require that the couple be legally separated for two years before the divorce can proceed. Additionally, while these two states also allow traditional grounds such as cruelty and abandonment, other states such as California do not.

Interestingly, three states - Louisiana, Arizona and Arkansas enacted laws that allow couples to choose which laws should govern their divorce in the event things don't work out. This decision is made before the couple marries and they can choose between the no-fault option and what is called a "covenant marriage".

If they choose the no fault option, they must still wait the designated separation period before the divorce can proceed and they are not able to allege additional ground in the event that a divorce does occur.

Should they choose the covenent marriage, both parties must agree to pre-marital counseling and have limited grounds to choose from in the event the marriage goes sour.

Different states also have different residency requirements ranging from a mere 90 days (Arizona) to one year.