Fault Divorce Basics
In a fault divorce, you're basically claiming that your spouse did something to cause the breakdown of your marriage. Divorce is a matter of state law, so specific fault grounds can vary depending on where you live, but generally, they include:
- desertion or abandonment
- cruelty or domestic violence
- mental illness or incompetency
- alcohol or drug abuse, and
- criminal conviction—with or without imprisonment.
You’ll be required to provide proof of your spouse’s misconduct. For example, if you're requesting a divorce based on your spouse’s adultery, you’ll need evidence of your spouse’s sexual affair with another person.
Most states recognize both fault and no-fault divorces. Be sure to review your state's laws or ask a local family law attorney for advice.
No-Fault Divorce Basics
Today, all states offer no-fault divorce. In some states, no-fault divorce grounds are referred to as “irreconcilable differences,” “incompatibility,” or “irretrievable breakdown,” which all basically mean that you and your spouse have fundamental differences, and your marriage is broken beyond repair, but no one’s to blame for the divorce.
Some states require a separation period before spouses can seek a no-fault divorce. For example, in Maryland you can seek a no-fault divorce if you’ve been separated for at least 12 months. A 2015 Maryland law allows couples to waive the separation period if they agree to the divorce, don’t have minor children together, and have a written agreement settling all support and property issues in their divorce.
What’s the Difference Between a Fault and No-Fault Divorce?
No-fault divorces are usually simpler than fault divorces because spouses don't have to prove misconduct. Ultimately, this means divorces based on irreconcilable differences are typically faster and less expensive than fault-based divorces.
Even though it’s tempting to list all your spouse’s bad actions in your divorce complaint, it usually won’t make any difference in your case. Property is matter of state law and a judge will divide your marital property according to the equitable distribution or community property laws of your state. It won’t matter whether you are seeking a fault or no-fault divorce.
However, you may want to highlight your spouse’s fraud or misdeeds if you live in a state where courts can consider marital misconduct when deciding how to divide property and whether to award alimony. For example, in Utah, a judge may consider one spouse’s marital misconduct when awarding alimony. Additionally, if your spouse squandered your savings on a lover, you may want to bring up that marital misconduct and require your spouse to return the funds to you as part of the divorce settlement. Your unique circumstances will affect what type of divorce you should pursue in your case.
Questions for Your Attorney
- I just received a petition for divorce from my spouse. What should I do?
- I already filed for a no-fault divorce, but want to change my petition to a fault-based divorce. Can I change my divorce grounds?
- How long do I need to be separated from my spouse before filing for divorce?