What is The Difference Between Fault and No-Fault Divorce?

There are significant differences between a fault divorce and a no-fault divorce. Divorce laws vary a lot from state to state. In some of the states, married couples can seek only fault-based divorces, while many recognize divorce on both fault and no-fault grounds.

Where you live decides the laws that might apply in your case. It always helps to consult an attorney to understand the laws specific to your state. Let us study the differences and explore the choices feasible for your situation.

No-Fault Divorce

In a no-fault divorce, the spouse filing for divorce does not need to establish the other spouse’s wrongdoing as a basis for which to dissolve the marriage. Often, irreparable breakdown and irreconcilable differences are the stated grounds for a no-fault divorce.

An objection by a spouse to another’s no-fault divorce petition runs the risk of being counterproductive. The court can view the objection itself as a sign of irreconcilable differences between the two.

The laws in all the states recognize no-fault divorce. However, laws in some states necessitate a minimum period of separation before either of the spouses can file for one.

Fault Divorce

Most of the states do not ratify fault-based divorce anymore. Even in the states that do, fault divorce is not very common. In fault divorce, a spouse can base the divorce petition on the grounds of the other spouse’s wrongful actions.

Verdicts in a fault-based divorce are typically costlier and more difficult to obtain than in the no-fault divorce. But in certain states, some of the grounds for a fault divorce may appear to favor one spouse more than the other. A case in point is the denial of alimony on the grounds of adultery in some states.

Some of the grounds for a fault divorce are:

• Adultery
• Pregnancy, hidden at the time of marriage
• Abandonment (different states specify different lengths of time)
• Abuse (physical, emotional, or mental cruelty)
• Prison Term (different states specify different lengths of time)
• Insanity
• Impotence
• Substance abuse
• Infection with a sexually transmitted disease
• Marriage between people too closely related (in some states grounds for annulment)

Some states require a separation period of up to two years in no-fault divorce. But there is no such stipulation for separation while filing the fault-based divorce petition.

The spouse that files for a fault-based divorce stands a chance to gain a larger portion of marital property or bigger benefits in support if they can establish wrongdoing, though this is not always the case. For some people, these aspects make fault-based divorce more appealing than no-fault divorce.

Common Legal Defenses against Fault-Based Divorce

A spouse can either claim that the accusations against them in the fault-based divorce petition are false or take recourse in mounting a legal defense. Each state’s laws define the available legal defenses. Here is a list of the commonly available divorce defenses:

Connivance

 Connivance is a defense with limited use only against allegations of adultery in a divorce case. Connivance occurs when one spouse spurs the other or creates an opportunity for them to participate in adultery but later files a divorce on the grounds of adultery.

The spouse who indulges in an affair encouraged by the other spouse can use connivance as a legal defense against the allegations.

Condonation

 Condonation is also a legal defense used mostly against allegations of adultery in fault-based divorce. Condonation claims that one spouse knew that the other spouse was in an adulterous relationship but still consented to the affair or forgave it.  After forgiving such conduct, they resumed the marital relationship.

A spouse condoning such acts cannot later seek divorce on the grounds of adultery. But on the other hand, the spouse using condonation as a legal defense must prove that the other spouse knew about and forgave the wrongful act and continued with the marriage.

Recrimination 

Recrimination is a defense where the defending spouse uses counter-allegations of similar nature against the complaining spouse. Typically, one spouse invokes this defense when the other spouse seeking a divorce may also be guilty of similar wrongful acts such as cruelty, adultery, or desertion.

Provocation

Provocation occurs when the actions of one spouse incite the other into committing a wrongful act. Abuse by one spouse leading to abandonment by the other can form the basis of such legal defense.

Collusion 

Collusion occurs where the couple agrees to fabricate the grounds to obtain a divorce. It could happen in cases where couples do not like the thought of waiting for a stipulated time in no-fault divorce. If one of the spouses changes their mind and files for fault divorce, collusion becomes a legal defense.

The Principle of Comparative Rectitude in Fault-Based Divorces

In cases where both the spouses make allegations that are justifiable grounds for a divorce, the courts apply the principle of comparative rectitude. The courts, under this principle, award divorce to the petitioner with less serious fault.

The principle of comparative rectitude redresses the quandary of courts accepting neither party’s divorce petition if both were at fault. The court, under this principle, might award certain rights like the right to remarry, to the spouse with lesser fault while denying those rights to the other spouse. However, courts rarely grant this type of divorce, also known as least-fault divorce.

Key Takeaway

With the elimination of fault as a ground for divorce in most states, no-fault divorce is by far the most common way to dissolve a marriage in today’s society. Courts, while recognizing their duty to uphold the sanctity of the institution of marriage, also acknowledge the futility of coercing two individuals to remain bound in matrimony against their choice.