How Is 'Fault' Determined in a Divorce?

Divorce can be a difficult process, even when both parties have come to a mutual understanding that parting ways is best for everyone. Sometimes, however, a marriage ends due to the bad actions of one spouse, creating a more volatile situation.

In some states, evidence of this misconduct allows the aggrieved spouse to file for a fault divorce, giving them the opportunity to prove they've been wronged and potentially gain an edge in asset distribution. Read on to learn more about where and when fault divorce might be appropriate, as well as the actions that can set this type of proceeding in motion.

Most of the public is familiar with the concept of no-fault divorce. These divorces often cite reasons such as irreconcilable differences or irretrievable breakdown of the marriage, allowing both spouses to go their separate ways without evidence of wrongdoing on either side. A spouse cannot prevent a no-fault divorce filed by the other spouse, but some states require a period of separation before the divorce will be granted.

If you’re considering your divorce options, be aware that filing a no-fault divorce doesn’t stop evidence of a spouse’s wrongdoing from being presented in court. For example, even in a no-fault divorce, evidence of physical abuse or financial misconduct could be relevant to child custody and asset division. Don’t confuse a no-fault divorce with an uncontested divorce, in which both parties agree on the terms of ending their marriage.

Fault divorces, on the other hand, require one party to have acted in bad faith. A fault divorce is granted when one spouse is able to prove the dissolution of marriage is necessary due to misconduct from the other spouse. In some cases, if the offenses are proven, the petitioning spouse may receive a larger portion of the marital assets.

Fault divorce petitions almost always eliminate the possibility of an amicable agreement, as one spouse must accuse the other of wrongdoing. This option is also more expensive in most cases because attorneys and investigative services will probably be needed.

Where and in What Situations Is Fault Divorce Used?

No-fault divorces are usually simpler to process, so you may be wondering why anyone would choose to go with a more expensive and complicated option. In some states, one reason for filing a fault divorce petition is the possibility that proving the offense could impact the division of marital assets or any monetary support orders. It can also have an impact on child custody petitions, depending on the alleged fault.

Another possible reason is the couple wishes to avoid a mandatory separation period imposed by state law before a no-fault petition can be granted. A few states only permit no-fault divorce if both spouses agree to the divorce.

However, proving fault won’t always affect the outcome of a divorce case. Even if a judge finds one spouse to be at fault, many states require that courts divide assets fairly and enter custody orders that are in the children’s best interests.

Fault Divorce States

In the U.S., every state offers no-fault divorces. (Check the state-by-state divorce laws in this database created by Nolo.) The following states give the option of filing for a fault divorce:

• Alabama
• Alaska
• Arizona
• Arkansas
• Connecticut
• Delaware
• Georgia
• Idaho
• Louisiana
• Maine
• Maryland
• Massachusetts
• Mississippi
• New Hampshire
• New Jersey
• New Mexico
• New York
• North Carolina
• South Carolina
• North Dakota
• South Dakota
• Tennessee
• Texas
• Utah
• Vermont
• Virginia
• West Virginia

While these states allow reasons of fault in divorce petitions, it’s important to remember that the effect can vary by state. States not listed, including Washington, D.C., don’t allow fault-based divorce petitions. The list of states that allow fault divorces changes frequently, and more states are moving toward a purely no-fault divorce model.

To file a fault divorce in most states, a residency requirement must be met by one or both parties. This means that one or both spouses must reside in the state for a certain amount of time — usually three months to a year, before filing for divorce. Once a divorce petition is granted, it is recognized in all 50 states.

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What Types of Offenses Are Considered Grounds for Divorce?

Grounds for a fault divorce vary by state, but may include the following behaviors or scenarios:

• Drug or alcohol abuse
• Abandonment for an extended period of time
• Physical sexual disability if not disclosed before marriage
• Adultery
• Prison confinement
• Giving the other spouse a sexually transmitted disease
• Cruelty, including physical and emotional abuse
• Serious and incurable mental illness

The requirements for proving these allegations also vary between states, and it’s smart to speak with a lawyer when considering filing for a fault divorce.

How Is Fault Determined in a Divorce?

When a fault divorce petition is filed, any accusations leveraged against a spouse must be supported by evidence. A trial is often set, and the filing spouse is given an opportunity to present evidence and offer testimony. The accused spouse is also offered the opportunity to defend themselves and has a few options for doing so:

• Condonation: Occurs when the defendant can prove expressed or implied forgiveness from the petitioning spouse
• Recrimination: Involves claims that the filing spouse engaged in the same offenses
• Connivance: Includes evidence that the petitioning spouse had knowledge of and allowed the activities
• Provocation: Involves claiming that the filing spouse provoked the offense

These defense options may vary by jurisdiction — as can the level of proof required to prove an accusation. A judge will hear testimony and review the evidence on both sides and make a decision based on everything submitted. If there is enough evidence to support the accusations, a fault divorce is granted.

Generally, there is no requirement to have an attorney for a divorce trial, even though it may be a good idea for both parties.