Types of Divorce: Fault v. No-Fault

Wedding cake split

Many people still seem to think that it’s better to get divorced using fault grounds rather than filing for a no fault divorce; and while many states no longer even have divorces based on fault grounds, there are still some states in which you can get a divorce based on adultery, cruelty, abandonment/desertion, addiction, or incarceration.

Even if the state you live in allows fault-based divorces, you should consider whether establishing fault makes any difference in your case. If you feel that you have been wronged by your spouse, you may think that it is your right or even an obligation to tell the judge that your soon-to-be-ex is a cheat, an addict, or he/she is crazy, but short of having psychological release by “airing things out,” you may not be deriving any actual benefit from having a fault-based divorce.

So many people wonder if the fault-based divorce is actually useful, and will establishing fault expedite the process of getting divorced? Will your spouse be punished, and if so, will that benefit you? Will you get a better deal in your marital settlement, or at least, will your emotional pain go away faster?

Unless the facts in your case are so extraordinary or so compelling as to make even the most hardened of judges feel sorry for you, most judges simply do not care as to who caused the end of the marriage. Also, it is not easy to actually establish alleged fault 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 proceed with the rest of the case. If that happens, not only you will not gain anything, but you will waste more of your time, money and effort, and may even annoy the judge who (mind you) still has to decide the rest of the case.  Unless you have solid documented evidence, really consider whether it’s worthwhile for you to be hell-bent on assigning fault for the breakdown of your marriage.

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. If somehow your spouse ends up being actually punished, for example for cheating on taxes; you may end up getting pulled into his/her drama too, or there will be less assets for you to share after the IRS seeks back taxes and interest. Should your spouse end up in jail, and you were hoping to collect alimony or/and child support, you can pretty much kiss that money good buy.

In comparison, a no fault divorce is exactly just that. It is a divorce in which the spouse filing for divorce does not have to prove any fault on the part of the other spouse. All a spouse needs to do is to give a reason that the state honors to grant a divorce. The most common such reason is “irreconcilable differences” or an “irreparable breakdown of the marriage.” These pretty much mean that the parties no longer get along and that the marriage is over. While all states recognize no fault divorces, some require that the spouses live separately for a specified period of time before either of them can file for a divorce.

So rather than concentrating on establishing a 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 still involved in your children’s life and you will have to maintain some kind of contact with your spouse. As such, ending your marriage without the unnecessary drama, will help all of you to recover sooner and to move forward.  Divorce is hard enough as it is, even the friendliest of divorces is still a divorce (breakdown of the marriage), so think hard (before filing) as to what type of divorce you want.

Note that even if you wish to part ways amicably, your spouse may file an Answer and still he/she may file a Counterclaim slapping you with a fault-based divorce.

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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