What is a Fault Divorce?

Divorce does not come out of nowhere. But in a fault divorce, something, in particular, has brought on the request of one spouse to be divorced from the other. It’s not just an unhappiness, it’s something recognized in law as a reason for requesting a divorce. Examples of grounds for fault divorce included:

  • Cruelty (emotional or physical abuse)
  • Adultery or unfaithfulness
  • Absence or desertion
  • Previousyl undisclosed physical impairments to intercourse

The benefit of fault divorces is they do not require the traditional period of separation. Another benefit is that the spouse found at fault may be required to give up more marital property to the wronged party as well as sacrifice any visitation rights. Interestingly, if the court finds both spouses are at fault then the spouse who is determined less at fault is the one granted the divorce and thus given more negotiating power. This is called comparative rectitude. It’s important to know that not all states allow fault divorce.

What is No Fault Divorce?

This is a form of divorce available in all 50 states. It does not require a spouse to prove a reason for divorce. To begin this process it simply requires the party seeking divorce to select a general, legally recognized reason for divorce such as incompatibility, irremediable breakdown of marriage, or, most common, irreconcilable differences. While states don’t require the same level of proof as fault divorce unfortunately some states require as part of this process for couples to spend a period legally separated before they can seek a full divorce.

Do I Have to Get Divorced in the State I Got Married In?

In order to seek a divorce, you must do it in the state in which you are a resident. To be considered a resident of a state you must have lived there for at least 6 months. In order to file for divorce in any state, you must prove you’ve lived there for at least six months (dated utility bills, a state ID, etc.). The only states where this is an exception are Alaska, South Dakota, and Washington where they do not require statutory requirement of residency to file in that state. This becomes important if you and your spouse are living in separate states and you suspect they may file for divorce. If your spouse files for divorce first and is in another state and they are legally able to do so, you may find yourself suddenly inundated with travel fees to meet them at various court appearances in their state.

Is There a Way to Contest Fault Divorce?

If you have been served fault divorce proceedings by your spouse, you have paths of contesting this. There are a number of legal statutes that could prove you were not at fault:

  • Condonation: This requires you to prove that your spouse was aware of your activities and did not object
  • Collusion: This is when spouses “collude” to invent a fault divorce narrative to avoid the state’s required separation period
  • Connivance: This requires you to prove that your spouse somehow set you up in a situation to commit wrongdoing, such as inviting over an extra-maritial lover
  • Provocation: This defense involves claiming that your spouse somehow incited you into committing the acts for which they are no divorcing you

These defenses are rarely used and difficult to prove, so be cautious before you seek this out during your divorce process.

We can’t you on the phone with a family lawyer in your area to provide advice and legal help when seeking your divorce.

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