You may have heard the term “no-fault divorce”, but what does that mean? Essentially, a no-fault divorce refers to the legal termination of a marriage where it’s unnecessary to prove any wrongdoing by either party.

In a no-fault divorce, depending on state laws, the reasons for ending the marriage are usually cited as “irreconcilable differences” or an “irretrievable breakdown of the marriage”. Removing the element of blame often helps remove additional conflict, allowing spouses to terminate their marriage faster and in a more collaborative manner. 

These are just some of the reasons for choosing a no-fault divorce. Below we discuss in more detail no-fault and fault divorces, as well as the pros and cons of a no-fault divorce.

What is a “no-fault” divorce?

A “no-fault divorce” means that spouses who wish to terminate their marriage don’t have to prove that the other spouse was at fault. 

In these proceedings, both parties acknowledge a mutual incompatibility, an “irretrievable breakdown” of the marriage or some kind of “irreconcilable differences”. Generally, the couple agrees that there is no further hope of reconciliation between them and is looking for a smooth dissolution of their marriage. 

A no-fault divorce is sometimes appealing because the amount of conflict is often reduced, not only for the couple themselves but especially for their children or other family members. 

In a no-fault divorce, neither party is pressured to present proof of their claimed grounds (reasons) for divorce. Nor do they have to defend themselves against those reasons. In turn, both the couple and other affected family members have less individual blame to focus on and more opportunity to take care of their emotional, mental and physical needs as they navigate what can be a challenging transition. 

What is a “fault” divorce?

A “fault” divorce is when one or both spouses claim wrongdoing on the part of the other spouse. That is, they cite a specific reason for the requested dissolution of the marriage. Usually, blame is assigned to at least one of the spouses due to a specific act of wrongdoing or misconduct. 

Some of the traditional grounds for fault divorce are: 

• Adultery
• Cruelty
• Abandonment
• Prison confinement
• Physical inability for sexual intercourse (if hidden before marriage)
• Incurable insanity

Until a few decades ago, fault divorce was the only option for divorce in the U.S. Today fault divorces are less common than no-fault divorces, and they’re no longer available in every state.

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How does fault impact a divorce?

Compared with no-fault divorces, fault divorces have historically been much harder emotionally and financially on the divorcing couple. 

Not only does the filing party need to provide enough proof of fault to justify their claims, but the accused spouse is usually expected to defend themselves. Because of this, instead of a clean break, fault-based divorce proceedings are likely to take more time and energy, extending from weeks to months or even years as the couple engages in various finger-pointing scenarios. 

The high potential for conflict in fault divorces can also lead to extended emotional distress for the divorcing parties and other family members, especially any children. It can be challenging for kids to see their parents in the light of the divorce claims or to be exposed to new experiences of them in court. 

Typical reasons for fault divorce may also involve some degree of trauma for some or all family members. It may be painful or psychologically detrimental to come in close contact with these memories as they are brought up in the proceedings.

In addition to the emotional toll, fault impacts the distribution of spousal property. It’s common for no-fault divorces to allocate property per a written agreement from the couple (though these negotiations don’t always succeed). In a fault divorce, however, property is often but not always distributed based on the degree of wrongdoing. For example, a spouse subjected to domestic abuse is more likely to receive a greater share of marital assets than their partner does.

Misconduct from one or both spouses can also affect the amount of spousal support, or alimony, that each party receives. For example, if one spouse wasted shared funds on an extramarital affair, the other spouse is likely to receive a greater share of the alimony awarded.

No-fault divorce states

Couples can file for no-fault divorce in every state. However, the requirements for these proceedings and how they occur vary based on each state’s jurisdiction. The settlement of property allocation and child support is also subject to state guidelines. 

Some current state laws make things easier than others. For example, to file for a no-fault divorce in Virginia, the couple must prove they’ve lived separately without sexual relations for a continuous period of at least one year. 

In addition, Mississippi and South Dakota are the only remaining states that don’t allow unilateral no-fault divorces. In those states, both sides have to agree on “irreconcilable differences” as grounds for the divorce. If one of the parties doesn’t provide consent for a no-fault divorce, the dissolution of the marriage could be delayed for years. 

Legislators in these states continue to fight for bills that would give one spouse the power to end the marriage despite the others’ claims.

No-fault divorce pros and cons

Pros of a no-fault divorce

There are several advantages to a no-fault divorce. For example: 

• Focus on property distribution and child custody. Since the couple doesn’t need to prove wrongdoing by one or both individuals, the proceedings spend more time negotiating the distribution of marital assets and debt, spousal support and, where applicable, child custody and support.
  
  Negotiating a divorce agreement can be handled directly by the couple themselves, or supported through processes of alternative dispute resolution (ADR).
  
  For example, instead of having a court hearing or trial where a judge decides the disputed issues, the couple can meet with a third-party mediator to discuss their differences and reach a settlement. Another option is “collaborative divorce”, where each spouse brings an attorney and works in a four-way “team” toward a written agreement. In all cases, the primary focus is on negotiating the terms of settlement rather than first proving guilt and innocence within the marriage.

• Less incentive to falsify evidence. Fault in a no-fault divorce may still strongly impact child custody rulings, but it has far less value overall than in a fault divorce. Creating false evidence of guilt or innocence to support their claims doesn’t benefit either party in that case, and therefore occurs far less often.

• Quicker trials due to limited-issue focus. Since the scope of the issues that need to be discussed and finalized is smaller, no-fault divorce proceedings tend to be completed more quickly than their fault-based counterparts. Though it’s not always easy to reach an agreement on property distribution and child support, it’s typically a faster process than proving spousal fault. 

• Less expensive. In a no-fault divorce, a couple may spend little time in court, reach an agreement privately or with a court-appointed mediator and generally minimize their use of an attorney. There are still some fees involved (such as the cost of filing the divorce), but these are significantly lower than an extensive fault divorce trial. 

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Cons of a no-fault divorce

Despite the benefits of taking a no-fault route, there are some disadvantages too. 

First, bad behavior by one or both spouses doesn’t primarily influence spousal support and property division. Although wrongdoing does play a role in determining child custody and support, it’s possible for the guilty and innocent spouse to get relatively similar award allocations because of the absence of blame. 

Similarly, no-fault divorce often fails to hold spouses partially or fully accountable for unreasonable behavior or misconduct that occurred within the marriage. Especially in cases where one spouse acted in extreme ways against the other, no-fault options give the guilty spouse the chance to avoid consequences for their actions as the marriage ends. This may be challenging for the other partner, who is seeking justice in addition to a way out of the relationship. 

Choosing whether or not to file for no-fault divorce depends on many factors. A couple’s goals for their assets and relationship and their willingness to cooperate during divorce negotiations are among the most important. 

Talk to a divorce attorney

Whether you file for a no-fault or fault divorce, going through a divorce isn’t an easy or simple process. If you choose to go with a no-fault process and settle the terms on your own, talking with a divorce attorney beforehand can support you in navigating this challenging experience. 

Some of the reasons you may want to consider this include: 

• Financial issues. It’s important to know the big picture of your financial rights and obligations before entering into the divorce proceedings, especially since this may be significantly different in the short and long term. Knowing your bottom line will leave you more prepared and better equipped to make the process smooth.

• Support. An attorney can be a supplemental source of support for a difficult transition. Attorney-client privilege means you’ll have a confidential relationship in which you can ask all your questions and receive advice. Your attorney might even be able to point you in the direction of other resources, such as counselors or domestic abuse support services. 

Need more guidance regarding a no-fault divorce? We’re here for you! Reach out to the divorce attorneys at Marble, who can help guide you through this period.