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Fault vs No-Fault Divorce: What's The Difference?

The difference between fault and no-fault divorces starts with the legal basis for the divorce, but can also affect the outcome. We explain it all here.

evident Editorial Team
December 6, 2023
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Divorce is not an easy thing for any couple to go through, no matter the circumstances. There are many different grounds for which someone can file for divorce.

A threshold distinction is Fault vs No-fault divorce. But what’s the difference between the two, and how does no-fault divorce work?  

This article will cover:

  • What is a no-fault divorce? 
  • What is a fault divorce?
  • Commonly asked questions about fault vs no fault divorce
  • The main takeaways to know before filing for divorce
Key Takeaways

What is a No-Fault Divorce?

In a no-fault divorce, the filing spouse does not need to provide specific reasons (or evidence) to explain the basis for the divorce. A no-fault divorce involves:

  • Irreconcilable differences
  • Incompatibility
  • Breakdown in the relationship

The other spouse cannot object to a no-fault divorce -- a judge would view an objection as an example of the irreconcilable differences and breakdown of the marriage. 

No-fault divorce is allowed in every state, and many states actually do not even offer an alternative. For example, Florida and Illinois no longer have fault-based grounds available.

Note, though, that some states require the married couple to live apart for a certain amount of time before filing for a no-fault divorce. The amount of time the spouses must live apart varies between states, often ranging between six months to a year.

What is a Fault Divorce?

Fault divorces were the only type of divorce available until 1969. Since then, there has been a huge movement toward greater access to no-fault divorces, and fault divorces are no longer available in all states.

Fault divorces can be filed when the filing spouse requests the divorce for a specific, legal basis. The specific legal grounds for fault divorces may vary between states where fault divorces are an option, but they often include:

  • Adultery
  • Physical abuse
  • Emotional abuse
  • Prison confinement/felony conviction
  • Abandonment
  • Insanity
  • Inability to have sexual intercourse (disclosed after the marriage)
  • Substance abuse

Impact of a Fault Divorce

One of the primary differences between fault and no-fault divorces is that the married couple is not required to live separately for a certain period of time in a fault divorce. 

Often the court considers who is at fault when dividing up property and assets. The bad behavior is factored into this division. 

Fault divorces also impact decisions about spousal maintenance (or alimony). Generally, the spouse who is at fault may have to pay more in spousal maintenance.

Advantages of Fault-Based Divorce

Though fault-based divorce can be more complicated in some ways, there are also potential advantages of fault-based divorce. 

For instance, depending on state laws, a spouse who is able to prove fault may get a more favorable outcome from the divorce. For instance, in Texas, it is possible to get more favorable rulings in terms of spousal maintenance or property division if a party can prove fault. 

Additionally, there are some scenarios in which a fault-based divorce could be faster if it allows the parties to bypass a waiting period that might otherwise apply. In Pennsylvania, for example, there is no waiting period for fault-based divorce while a divorce based on mutual consent has a 90-day waiting period. 

Thus, there are potential advantages of fault-based divorce, but whether they apply will depend on the applicable state laws and the factual circumstances. 

Defenses to Fault Divorce

Some defenses can prevent a fault divorce. 

  • Condonation: the filing spouse approved, or did not object directly, to the action that is the basis for the divorce
  • Connivance: the filing spouse agreed to or even set up the conduct that is the basis for the divorce
  • Provocation: the filing spouse encouraged or provoked the behavior they then sued their spouse for
  • Collusion: when a spouse, originally filing for a no-fault divorce, tries to speed up the process by creating grounds for a fault divorce in order to avoid a mandatory separation period

While these defenses are an option, they are rarely pursued because of the time and cost involved in proving them in court. These defenses also fail often, and courts eventually grant the divorce anyway because courts are reluctant to force people to stay married if they don't want to be.

No-Fault Divorce Pros and Cons

What are the pros and cons of no-fault divorce? The main advantage of no-fault divorce is that it is available in all fifty states anddoesnot require proving any particular legal ground to get divorced.

Each state has its own requirements for no-fault divorces and you could still have to navigate things like divorce waiting periods. That said, neither party has to carry any burden of proof to show that the other spouse committed adultery or abuse in order to end the marriage. 

Relatedly, the other main pros of no-fault divorce are that it is generally a simpler, faster, and less expensive process. No-fault divorces can still be expensive or take a long time. But generally speaking, the process should be easier given there are fewer legal requirements to meet than with fault-based divorce. And this should hopefully reduce the stress and tension involved in the divorce process, too. 

So you might be wondering why no-fault divorce is bad, or at least what the advantages of fault-based divorce are. The main advantage to fault-based divorce is that a party who can prove fault may get a better outcome from the divorce proceedings. 

As noted, some states might make more favorable decisions regarding alimony or property division if a spouse can prove marital misconduct by the other spouse.  

Additionally, in some states, fault-based divorce might allow parties to bypass a waiting period that would otherwise apply to no-fault divorces. 

Balancing the pros and cons of no-fault divorce will require considering your own personal circumstances and what outcomes you are hoping to achieve through the divorce process.

Fault vs No Fault Divorce: FAQs

What are the grounds for a no-fault divorce?

There is no specific requirement for a no-fault divorce. No-fault divorces, no matter the state, are granted in situations where there is no hope of salvaging the relationship.

Which is better, fault or no fault divorce?

Given the differences between fault and no fault divorce, your personal circumstances will dictate which is the better option for you.  

Fault divorce generally takes longer and costs more than no fault divorce, but there could be benefits if you are able to prove fault. 

No fault divorce won’t impact distribution of assets or alimony payments in the same way, meanwhile, but is generally less complicated without the requirements to prove fault.

Are there any other grounds on which fault divorces are granted?

The grounds for fault divorces vary between the states where fault divorce is an option. However, most of the grounds are similar and fall under those listed above (e.g., adultery, abandonment, etc.).

Can a spouse prevent the court from granting a divorce?

A spouse cannot object to a no-fault divorce petition. The court can view that objection as simply another "irreconcilable difference" in the marriage.

In a fault divorce, the non-filing spouse can submit a defense by claiming condonation, connivance, provocation, or collusion. If they successfully prove their defense, the court will not grant the divorce. 

What if both spouses are at fault?

When both spouses are at fault, the court will call upon comparative rectitude to decide who is less at fault. When comparing the relative fault of each spouse, the spouse who is less at fault is awarded the fault divorce by the court.

Fault vs No-Fault Divorce: The Bottom Line

If you are contemplating divorce, you should be aware of what options are available to you so that you can evaluate the best way to proceed.

No-fault divorces are available in all states and do not require any specific grounds for the divorce. The divorce is often granted on the basis of "irreconcilable differences," and the non-filing spouse cannot object to the petition. 

Fault divorces occur when the filing spouse has a specific legal basis for the divorce, which they must prove in court. Fault divorces are not available in all states, and they do not require a separation period (which no-fault divorces often do require). 

All else equal, fault divorces are comparatively longer and more expensive than no-fault divorces. The non-filing spouse may also defend themselves in order to prevent the fault divorce from being granted. However, many choose not to spend time or resources pursuing a defense. 

If you are debating fault vs no-fault divorce and unsure which is best for you, consider speaking with an experienced divorce attorney to discuss the specifics of your situation.

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