Many women seeking divorce have questions about fault and no fault divorce and which would be the best for their situation. In this article, we’ll explore the differences between these two types of divorce.
By Kyle Persaud, J.D.
A “no fault divorce” means that a couple can get divorced based on their inability to get along, without having to prove anyone was at fault for the marriage ending.
For much of American history, a spouse could only get a divorce if he or she could prove that the other spouse was at fault for the breakdown of the marriage. Typically, the fault grounds for which divorce was allowed included adultery, abandonment, cruelty, mental illness, imprisonment, and drunkenness.
Before no-fault divorces were common in most states, spouses often went to great lengths to attempt to prove fault. If both spouses wanted a divorce, often one spouse would make false accusations against the other. The other spouse would admit to the accusations or simply not show up in court to contest the accusations, even though he or she knew the accusations were not true.
Other times, a divorcing couple would hire an attractive woman to be photographed in a compromising position with the husband. The couple would then go to court and claim that the photographs showed evidence of adultery. A 1934 article in the New York Sunday Mirror was entitled “I was the unknown blonde in 100 New York divorces.” The “unknown blonde” was a woman named Dorothy Jarvis, who typically charged $50.00 per appearance. Deceptions such as these were commonplace; one divorce court judge wrote that there was “no tribunal in the country” where “perjury” was “more rife than in divorce court.”
Beginning in the 1930s, some states began allowing no-fault divorce. Today, every state in the U.S. allows no-fault divorce. New York, the last state to allow no-fault divorce, adopted its no-fault divorce law in 2010.
States have a variety of terms for no-fault divorce; some state laws call it divorce based on the grounds of “incompatibility”, while other states use phrases such as “irreconcilable differences” or that “the marriage is irretrievably broken.” But in all states, the effect of the law is the same: a party can obtain a divorce without having to prove the other spouse is at fault.
Although all states now allow no-fault divorce, a few states have what are called “covenant marriages.” Arkansas, Arizona, and Louisiana allow couples to choose to enter into a covenant marriage. In these states, couples applying for a marriage license may choose the covenant marriage option and agree to pre-marital counseling and to undergo counseling before getting a divorce. In a covenant marriage, the couple also agrees to more restrictive grounds for divorce.
However, the law does not require any couple to enter into a covenant marriage. If you are in a covenant marriage, you must prove fault in order to obtain a divorce. The fault grounds are found in the statutes for each state. If you are in a covenant marriage and would like a divorce, it is best to speak to an experienced divorce attorney on how best to proceed.
Some states allow only no-fault divorce; in those states, you must file for no-fault divorce and cannot allege fault as a ground for divorce. In other states, you have the option of filing for either no-fault divorce, or arguing fault as a ground for divorce. Even in states that allow for a fault divorce, most divorcing spouses choose to file for a no-fault divorce.
For example, if you file for fault divorce in some states, you’ll have to provide proof of your grounds for divorce. Other states simply require a reasonable belief that the claimed fault grounds for divorce occurred. On the other hand, filing for a no fault based divorce removes the hurdle of proving someone was at fault. Because most divorce cases are very emotional to begin with, it’s often best not to add to the emotional aggravation by hurling accusations at your spouse.
However, in some states, filing for a fault divorce can give you certain advantages. For example, if you file for a no-fault divorce with minor children in Oklahoma, you must wait ninety days after you file the petition before the court will grant you a divorce. However, if you have children and you file for a fault divorce based on certain specified grounds, the ninety-day waiting period does not apply.
Another example is Arkansas, where the spouses must live apart for eighteen months to file for a no-fault divorce. However, the law requires no period of separation for a fault divorce to be filed in the state.
Given that each state has their own divorce requirements, there may be circumstances when filing for a fault divorce could be a better option for you.
Although no-fault divorce has become the norm throughout the country, fault-based divorce has not disappeared entirely. There may be reasons why it might be desirable, or even necessary, to seek a fault divorce. Because the divorce laws governing the rights of parties in fault vs. no-fault divorces can be quite complicated, you should seek legal counsel to help you decide the best course of action.
About the Author
As the founder of Persaud Law Office, Kyle Persaud has practiced family law in Washington Country, OK since 2009, assisting clients in Bartlesville and the surrounding area in their divorce and separation cases. Mr. Persaud holds a Bachelor’s degree from Oklahoma Wesleyan University, and a J.D. from the University Of Tulsa College Of Law.
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