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Why File for a Fault-Based Divorce?

By A.L. Kennedy ; Updated June 13, 2017

A divorce is a court decree that legally ends a marriage. Spouses in many states have the option of choosing whether to file a no-fault divorce or a fault-based divorce. Both types of divorce require spouses to demonstrate that there are grounds, or legally valid reasons, for the divorce. The grounds required in each type of divorce differ. Although the grounds for a fault-based divorce are more specific, filing for a fault-based divorce may provide several benefits.


Until the mid-20th century in the United States, fault-based divorce was the only divorce option in most states, according to Divorce was seen as an option available to one spouse only if the other had breached some essential part of the marriage contract. Therefore, a fault-based divorce could be granted only in cases of adultery, desertion or similar misdeeds. Even after the introduction of no-fault divorce, many states retained fault-based divorces for spouses who could not agree to pursue a no-fault divorce.


A fault-based divorce requires the spouse seeking the divorce to prove that the other spouse has committed one of the legal grounds for permitting the divorce. Most states with fault-based divorce still recognize the traditional grounds for such divorces, which include adultery, abandonment, neglect and commission of a felony. The grounds alleged by the spouse seeking the divorce must be proved by independent facts, according to For example, it is not enough to suspect your spouse of committing adultery; you must be able to prove it with independent evidence, such as videotape or the testimony of a third party.


Fault-based divorce offers several benefits. In many states, a waiting period is required for a no-fault divorce but not for a fault-based divorce. For instance, New York requires a one-year separation period before a no-fault divorce can be made final, but no such period is required to obtain a fault-based divorce, according to Women's Law. Next, a fault-based divorce may entitle the spouse who was not at fault to receive child custody, spousal support or alimony, and/or a larger share of the marital assets.


The effects of a fault-based divorce can be positive or negative. As noted above, child custody, spousal support, or a larger share of the marital assets may be among the positive effects of a fault-based divorce. However, since fault-based divorces require proving fault in court, they are often messier and more acrimonious than no-fault divorces. If the fault is especially embarrassing, such as adultery, the spouses may prefer to seek a no-fault divorce rather than risk revealing the embarrassing behavior to the public.


Hiring a lawyer when seeking a fault-based divorce is often the wisest course of action. An attorney can explain how fault-based divorce works in your specific state and can help you think of things to request from the court that you may not have considered, such as a share of your spouse's pension or retirement account, according to Women's Law. Forgetting to ask for these things during the divorce proceedings may prevent you from ever benefiting from them. In some states, you may be able to have the court appoint a divorce lawyer for you if you cannot afford one.

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