How does a no-fault divorce work? Guides and FAQs

A “no fault” divorce is easier than a traditional “fault divorce” because it eliminates an adversarial element. In the past, a court would not grant a divorce unless one party alleged adultery, cruelty, or other inflammatory motives. Now a divorce can simply be achieved by two lovely people who can no longer live together. Here are common questions about no-fault divorces and how they work.

What is a no-fault divorce?

A no-fault divorce is one where neither party blames the other for the impending divorce. Prior to the passage of the first no-fault law in 1969, the party seeking the divorce had to plead the reasons (or “grounds”) for the divorce, including desertion, adultery, or cruelty. Even though a court may use its discretion to grant the divorce without fault, there is always a risk that the court will reject the application.

No-fault grounds include “irreconcilable differences”, “irreconcilable breakdown of marriage” or “incompatibility”. The terminology for no-fault grounds varies from state to state, but they all mean the same thing: the marriage no longer works.

What are the pros and cons of a no-fault divorce?

The benefits of a no-fault divorce include:

  • Less incentive to tamper with evidence, for example, claiming infidelity when it never happened
  • Focuses on division of property and custody of children
  • Trials are faster than fault trials due to focus on limited problems
  • Confidentiality (fault divorce pleadings and trials often take place in open court)
  • Cheaper

The most cited disadvantage is that the bad behavior of a spouse will not influence alimony and the division of property. For example, if a spouse alleges infidelity in a no-fault divorce, this has no impact on the final divorce judgment. However, in a fault-based divorce, infidelity may allow for larger property awards and spousal support to the aggrieved party – although a spouse will have to prove this allegation at trial if the other party deny.

However, some allegations affect custody proceedings, even in a no-fault divorce. If a spouse is dangerous to children and has patterns of abuse or neglect, a court may determine that they receive limited or supervised visitation. The courts can completely refuse visits in the most serious cases.

What are no-fault divorce states?

All US states offer a no-fault option in their divorce statutes. For 20 states and territories, no fault is the only option. They understand:

  • Arizona
  • California
  • Colorado
  • washington d.c.
  • Florida
  • Hawaii
  • Illinois
  • Iowa
  • Kentucky
  • Michigan
  • Minnesota
  • Missouri
  • Montana
  • Nebraska
  • Nevada
  • New Mexico
  • North Carolina
  • Oregon
  • Washington
  • Wisconsin

Do no-fault divorce laws allow fault-based divorces?

There are 30 states that allow no-fault and no-fault divorces. When filing your petition for divorce, you must declare your preference between fault and no fault.

Unlike no-fault divorces, in no-fault divorces you need to be more specific about why you blame your spouse for the breakdown of your marriage. Irreconcilable differences do not work in a fault divorce. In most states, you must plead one or more of the following:

  • Adultery
  • Cruelty
  • Confinement in prison or a mental institution (usually for at least three years)
  • Incapacity

States may have additional grounds for fault-based divorce. For example, Alabama grounds for divorce still include bestiality (“crimes against nature”), drug addiction, lack of financial support, and premarital pregnancy by another partner.

Once you have pleaded a ground, be prepared to present evidence at trial. Fault divorces are conducted like civil trials where both parties present evidence and testimony, and a judge decides in favor of one party. Do not proceed with a fault divorce if you plan to fabricate evidence or make unproven claims. This strategy can backfire!

Should my no-fault divorce be uncontested?

No. The only element in a no-fault divorce that remains uncontested is that the marriage is irretrievably broken down or some other no-fault cause. Even if you disagree with your spouse and do not want a divorce, the court will not hear these arguments. The law considers it bad public policy to force someone who wants a divorce to stay married.

However, that doesn’t mean you have to accept everything else. You can always challenge your spouse’s proposed division of property, liability for debt, and child custody arrangements.

Your divorce should only be uncontested if you file for divorce online. This applies to fault and no-fault divorces.

Are you looking for a no-fault divorce?

A no-fault divorce is easier than a no-fault divorce, but it doesn’t simplify the whole process. The decisions made during a divorce will affect you throughout your life. Consider consulting a local divorce attorney to help you make informed decisions during this difficult time.

Legal Disclaimer: This article contains general legal information, but does not constitute professional legal advice for your particular situation and should not be construed as creating an attorney-client relationship. If you have any legal questions, you should seek the advice of a licensed attorney in your jurisdiction.

You may still have questions about the divorce process or want to learn more about your options. Check out these related resources from the MarketWatch Advisor Legal team to learn more:

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