Fault Divorce 1

Fault divorce (or at-fault divorce) was the traditional notion of divorce in which one party was required to prove that the other party had committed some wrong-doing which resulted in the breakdown of the marriage. The specific wrong-doing was referred to as the “grounds” for divorce. Prior to 1970, all U.S. states had at-fault divorce laws.

In 1970, the State of California passed a no-fault divorce statute. In 2010, New York did the same, becoming the 50th and final state to do so. The District of Columbia also allows no-fault divorces, in which neither party must prove wrongdoing. The only “grounds” for divorce in a no-fault proceeding is “irreconcilable differences”, “incompatibility” or an “irretrievably broken” marriage (depending on your particular jurisdiction).

Despite the availability of no-fault divorce proceedings in all 50 states, some states still allow for at-fault divorces as well. The traditional fault grounds are: cruelty or abuse, adultery, abandonment, addiction, incarceration, insanity and physical inability to engage in sexual intercourse (if not previously disclosed).

If the alleged wrongdoing is contested, it is likely that the divorce case will be tried by a judge and subject to proof by physical evidence and/or witness testimony. This can be time-consuming and expensive. (Legal defenses to at-fault divorce include connivance, condonation, recrimination, provocation and collusion.)

So, why choose an at-fault divorce proceeding? In some states, a substantial period of separation is required before a no-fault divorce will be granted and one or both parties do not wish to wait that long. In other cases, the filing spouse may stand to receive a greater distribution of marital property or a higher award of spousal support if wrong-doing is shown on the part of the other spouse.

In the past, if both spouses alleged and proved at-fault grounds for divorce, the court found that both parties were at fault for the breakdown of the marriage and declined to grant a divorce to either. Because this was patently absurd, the  law ultimately evolved to use a doctrine referred to as “comparative rectitude” in which the party least at fault is granted the divorce (though the ultimate result is the same – dissolution of the marriage – some financial details might be affected).

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Discussion

  • Barb31

    I have been married to my husband over 17 years. For the last 5 years he has promised me will will try to have children. Each passing month he would claim a new reason. Money being the largest reason. Except that we make enough to be considered well off. For the I became so distraught over this it has caused me to dip into a depression as I seem to watch everyone around me have a family I want. I ended up becoming very ill and my husband ignored it. When through the help of an old friend I got better, and we later had an affair, my husband admitted he knew what was going on but ignored all of it. Now I’m in love with the man that was there for me and not my husband. But I had and affair and I worry what divorce will look like for me. I was not working because I became so ill, so all I would really need is a small amount of alimony for food. I have my sister’s house I could stay at. Could you please share with me your experience with this type of situtation in seperation and divorce in NC. Thank you