What is No Fault and At Fault Divorce? 10

Who’s to Blame? Does is Matter, Legally?

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.

More about no-fault divorce…

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 (also called spousal support) 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.

More about at-fault divorce…

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. Because specific requirements for divorce vary from state to state, be sure to divorce laws in 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 covenant 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 (ie: Arizona) to one year.

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Discussion

  • John Keough

    I live in Minnesota my soon to be x-wife still lives in AZ where we were married. She says she has already filled for divorce in AZ. She said she could not have me served in MN. I found a link for her to download a form about accepting services and I would sign and notorize it. She agreed. I have not heard anything from her in over a mounth. She dos’nt answer any emails or phone calls anymore from me. I want to know first off how to check to see if she in fact did file and if not how can I do it here from MN. Would like to know how long I must be a resident here before I can file. Please help me out with some advice. Thank you John Keough

  • Jenny

    My husband has been having an affair. We live in the state of TX. I think I have substansial proof of the affair, but he still deneys it. I have very suggestive emails from the other women that were sent to my husband as well as a few text messages.. he says i am just twisting the words..also, phone records showing phone calls made between the two.. What will this evedence do in our divorce proceedings in court??

  • I have some question of no-fault or fault. Supposedly, A spouse have dark secret, that you find out years, with that spousely, and sudden, If find out. For example, Your spouses ( him/her) have incent of a affair, that other spouses, do not about it. So, If anyone want to get a divorce, which Law that could used, No-fault or/and Fault?

  • AJ

    We have been to the courthouse to file, we just need to write up the paper work. After the paperwork is completed where do we file that?

  • Porsha

    My Husband left me for another women we was only been married for 7months, but we been together for about 8 years when i found he really left me for another woman he tryed blaming it on my mouth and attitude. I talk to the other woman on the phone she said they was talking for about 2months. He never considered counsiling or nothing. This cause me alot of pain i had to go to a crisis center cause i was so depress. I cant eat or barely sleep. He came by and paid my rent but still left and said he cant do this. he want me to go to his family house for hoildays so they wont know whats going on this is hurting me. Can i sue and the other woman, but i dont have no evidence of the other just her phone number!!! What can I do?

    • Laura

      This hurts for ever and if you have kids and are trying to make it work it won’t, trust me I have been going threw this since 03 and we fight every day……..I am about to leave him he said he wasnt going to fight for are marrige ne more……………its not worth it if you dont have kids i have 5 if you dont get out while you can………….

  • TONY

    I have been seeing a woman that is still legally married in Virginia… they were unhappily together for 15 yrs and she tried getting a divorce in November 2010… the law is that they need to be separated for a year. He has been stalking and spying on her even before he knew about me, and saw innocent pictures of us on facebook… he moved out and leased an apartment, but then moved back in… what rights does she have regarding housing and custody of their 14 yr old daughter?

  • JP

    My girlfriend and I were together for 3 yrs. We bought a place together 8 months ago and I recently found out she cheated on me. We live in New York. We mutually agreed I will keep the condo we bought together, but will have to buy her out. Im in the process of getting a loan assumption and we then will do the deed transfer. I don’t feel she is entitled to the 50/50 split as she is at fault (i would have to buy her out). Legally, what are her rights?

  • kf

    I have been separated from my husband of 2 years for 1 and 1/2 years I am trying to file for divorce but his family will not assist with his address. How long do I have to wait if I can not locate him? I live in Los Angeles County, CA

  • Rebecca

    Gong thru it all after 23 years of marriage. We have no assets any longer..not much to fight about. Except he’s got a trial pending for SSDI that goes back to 2008. He just doesn’t want me to have any part of his little windfall.
    It’s just my opinion…but I think it should be just as hard (if not harder) to get married as it is divorced!