Fault Vs. No-Fault Divorce
There are two options available when a spouse petitions for divorce. He or she can either ask for a divorce based on no-fault grounds or he or she can file based on fault grounds. The option he or she will choose depends on the state laws where he or she lives and the particular circumstances of the case.
No-fault grounds for divorce are now recognized by all the states. This type of divorce does not allege the deterioration of the marriage was due to any particular act by either spouse. Instead, the no-fault ground is usually based on “irreconcilable differences” or an “irreparable breakdown of the marriage,” in accordance with state law. In general, these terms mean that the spouses do not get along and marriage is beyond the point of repair. Normally, it is at this point when either one or both parties consult and retain a divorce and family law attorney.
If the couple has been separated for a period of time, many states recognize no-fault grounds. In addition, some states also require the spouses who cite irreconcilable differences or an irretrievable breakdown of the marriage to be separated for a certain period of time before they can file for divorce.
There is no need for the spouses to testify in court about why their marriage has failed when they assert this ground for divorce. They must only prove that they are eligible for divorce by meeting residency requirements and similar requirements in accordance with state law.
Although all states have no-fault grounds, some spouses will file based on specific fault grounds. They may do this because they may not have met the period of separation required for no-fault grounds or because they derive some other benefit from it. The spouse alleging fault grounds is responsible for proving it to the court. Fault grounds are based on state law and defined there. The following are some common fault-based grounds for divorce:
Cruel and Inhuman Treatment
This term is defined under state law. However, it’s more than a simple misconduct or incompatibility. The conduct must be to such an extreme level that continued cohabitation threatens the other spouse’s physical or mental health. Ongoing physical or emotional abuse may be proof of this ground.
Adultery is common fault-based ground for divorce. However, state law may vary on what is considered adultery. For example, some states specify that adultery involves the physical act of sexual intercourse in order to qualify as such. Adultery is often proven with circumstantial evidence, such as showing that a spouse and a third party was romantically attached and had the opportunity to commit adultery. Judges must often decide whether or not adultery has occurred by the totality of the circumstances. Being guilty of the same conduct or forgiving the conduct and resuming sexual relations with the adulterous spouse are specific defenses to adultery.
The state statute may allow for fault-based divorce if a spouse is incarcerated for a specific amount of time, such as over one year.
If a spouse is confined for mental illness for a certain period of time in accordance with state law, this may be grounds for divorce.
Abandonment or desertion is another fault-based ground that may be recognized by the state. The statute regarding this ground usually specifies the amount of time that has lapsed since the spouse abandoned the other, usually for a year or more.
Abandonment happens when one spouse voluntarily leaves the other with the intent to desert him or her. The clock on the required timeframe starts once the spouse has abandoned the other. Reconciling and then parting ways again may or may not defeat this ground, depending on state law.
Some states allow for fault grounds based on habitual drunkenness or drug addiction.
If one or both partners are not able to perform sexually, the state may allow this reason for divorce.
Benefit of Proving Fault
In some states, proving fault affects the financial outcome of a divorce. As an example, if a judge finds that a spouse commits adultery and used marital assets to supplement a lover’s lifestyle, he or she may consider this fact when determining how to distribute property or how much alimony to award. A spouse is ineligible for alimony if he or she committed adultery or was proven to be abusive in the relationship, in some states.
Mark Schondorf is an experienced divorce lawyer based in the northern Chicago area, particularly in Northbrook IL and its surrounding areas.