At one point in time, couples filing for divorce would have to prove fault or provide grounds for divorce. This is no longer the case in the United States. All 50 states now allow for “no fault” divorces, in which grounds for divorce needn’t be established. Courts in some other countries, however, may still require grounds for divorce, which means proving fault. And only 15 states have abandoned fault divorces completely, although most U.S. judges are reluctant to apply fault rulings to cases unless it is absolutely necessary.
What is a no-fault divorce?
In a no fault divorce, couples agree to accept mutual blame (or rather, mutual blamelessness) in causing the divorce. In other words, each one agrees not to blame the other for the failed marriage. Obviously, the situation in at-fault divorces is just the opposite: one partner attempts to prove that the other spouse’s actions were unreasonable and detrimental to the marriage.
Why file a fault or a no-fault divorce?
No fault divorces are for couples who do not want to waste a lot of time pointing fingers and playing the blame game. We would strongly urge all parents to go this route. At-fault divorces are generally only beneficial if one spouse is trying to collect a large payout from the divorce, either in alimony or other damages. Since a marriage is technically a legal contract, at-fault divorces attempt to collect damages from that breach of contract.
The one other reason that people may decide to file a fault divorce is that some jurisdictions may allow the petitioner to avoid longer mandatory waiting periods that some states require (these are designed to ensure couples are sure they want a divorce), by proving fault. However, this comes at the cost of putting the case into court, which is a process in itself. So it’s debatable whether a fault divorce actually speeds up the process.
Determining fault in a divorce
The problem with fault divorces is the whole process of proving fault. In order to determine fault, one spouse must make accusations about what a horrible person the other spouse is. Then they must present evidence of this claim. Then this evidence must be hashed out in court, argued and counter-argued before a judge. In response to this personal attack on their character, the other spouse usually tries to prove the other one is no saint either. They collect and present evidence that the other spouse is a horrible human being, and argue this before the court. In the end, everyone’s reputation is dragged through the mud, and you’ve ended your marriage with one final epic battle that ensures your hatred for each other. All this back and forth slander, meanwhile, becomes a matter of public record that anybody can look up.
– Other considerations regarding fault and no fault divorce –
Dragging out conflict through fault divorces is harmful to children
If you have children, love them, and do not wish to harm them, then a no-fault divorce is the best way to go. Choosing the other option is extremely hard on everyone. It’s a path that ensures more conflict, guarantees more pain and hatred between parents, and is grounded in a principle we outline earlier as a grave divorce mistake: attacking the other parent. And since generally the only reason for a fault divorce is to use this blaming to “cash out” or secure other benefits for oneself, it could be described as a selfish act that comes at the expense of your children.
Fault-based divorces can grow expensive in a hurry, and the return is far from certain. Therefore it may cost you more than you gain. Any additional benefits or rewards may be offset by the costs of fighting it out in court – both in financial and emotional terms.
Mediating factors in fault divorces
Keep in mind that fault can be mediated by several factors. For example, if the spouse appears to have tolerated or approved of the offense in question, or through connivance tricked a spouse into committing a certain offense, this can mediate things. Fault can also be nullified if it’s determined that the offense was provoked by the other party. For example, if a wife has denied her husband sex unreasonably prior to divorce, this could be grounds to nullify a charge of infidelity.
Why determining fault in a divorce is often unnecessary
The whole idea of a fault divorce is rather unnecessary in many jurisdictions, since judges will consider the behavior of either spouse as a factor when making their decisions anyway. In custody disputes, for example, character issues are already taken into consideration, and many judges will consider the behavior of either party when dividing property, debts, or determining support. All of this, of course, requires that a case be taken to court; something that we strongly recommend against, since it comes with serious costs to your children and will drag out the conflict.
DES explains the difference between a fault or no-fault divorce, & discusses the advantages/disadvantages of fault divorce verusu no-fault divorce.