Fault v. No-Fault Divorce

There are many theories on the value of having a fault vs. no fault divorce, and while many states no longer have divorces based on fault grounds, there are still states in which you can get a divorce on a fault ground, some of which are adultery, cruelty, desertion, addiction, or incarceration (for more than a year).

However, even if the state you live in allows fault-based divorces, you should consider whether fault makes a difference in your case. If you feel that you have been wronged by your spouse, you may believe that it is your right or even an obligation to show the world that your soon-to-be-ex is a cheat, abuser, or a basket-case, but short of having some psychological release by “airing things out,” you may not be deriving much of an actual tangible benefit from having a fault-based divorce.

Even if you can prove your spouse’s fault in court and the judge finds your spouse to be at fault – it is usually only one of many factors that are considered when dividing the marital property, awarding alimony, or determining custody. So how will fault-based divorce actually help you – Will establishing fault expedite or prolong the process of getting divorced? Will your spouse be punished, if so, how will that benefit you? Will you get a better deal in your marital settlement? Will your emotional wounds heal faster?

You should realize that unless the facts in your case are so extraordinary or so compelling as to make even the most hardened of judges weep, most judges simply do not put that much weight as to whose fault is it that the marriage is ending. Also, it is not easy to actually establish grounds for divorce. If both parties accuse each other of being at fault, the judge is faced with the “he said/she said” problem and may not know whom to believe. When that happens, judge will most likely ignore both sides’ allegations of fault and just proceed with the rest of the case. If that happens, not only you will not gain anything, but you will waste your time, money and energy, and may even annoy the judge who still has to decide the rest of the case. Unless you have documented evidence, consider whether it’s worthwhile for you to be assigning fault for the breakdown of the marriage.

Rather than concentrating on establishing fault, the emphasis should be on moving on with your life. Even if your spouse left you and you did nothing wrong, consider ending your marriage without accusations and blame, which will only make your spouse more defensive and may prolong the entire process. As difficult as it may be during a divorce, think about the future and how you want to live your life post divorce. If you have children, chances are your spouse will somehow be involved in your children’s life and you will have to maintain contact with your spouse. As such, ending your marriage in a civilized way, without the unnecessary drama, will help all of you to recover sooner and to move forward.

About teperlaw

I am an attorney practicing family law, immigration and wills and estate planning. You can find out more about me and my firm by visiting my website at: www.teperlaw.com 106 W. Franklin Ave. Pennington, NJ 08534 (609) 737-3030
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