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What Is a Fault vs. No-Fault Divorce?

By the time a couple decides to divorce there have likely been tense conversations and various rounds of blame-game play to identify the marriage's point-of-no-return. In the midst of going different directions, is it better to file for a fault or no-fault divorce?

  • Fault-based divorce

A fault divorce is granted in instances when at least one spouse requests a divorce based on fault and where one of the required grounds is present. Fault-based divorces are not available in all states.

Filing for divorce on the basis of fault can help a couple sidestep any state law requiring a period of separation before filing for no-fault divorce. Also, in states in which proving fault affects the status of marital property or alimony, citing a fault may enable the non-faulting party to receive more from the divorce settlement.

Common grounds for fault-based divorces include:

    • Infidelity/Adultery/Cheating
    • Cruelty - inflicting unnecessary emotional or physical pain
    • Abandonment or desertion
    • Confinement in prison for defined number of years
    • Physical inability to consummate marriage, if not disclosed before marriage

The non-filing party can prevent a fault-based divorce from being filed by proving to the court that he or she is not at fault.

  • No-fault divorce

In no-fault divorces, neither party is blamed for the unraveling of the marriage.  In some states a couple must live apart for a period of time, usually months, before filing for a no-fault divorce.

All states offer the option for filing for no-fault divorce.

A no-fault divorce cannot be contested or stopped by the non-filing party.

  • Irreconcilably Yours

Citing "irreconcilable differences" is a common ground for no-fault divorce. It does not point to either individual's fault. Another common basis cited for no-fault divorce is "irretrievable marriage breakdown."

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