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Getting a Divorce | The Difference Between At Fault and No Fault Divorces

Updated on February 13, 2014
Source

How Does the Concept of "Fault" Affect Divorce?

The pretty journalist announced it on the news: Lawmakers in Kansas are considering a change to the law that will require married couples to prove fault before they will be permitted to divorce.

Although I have been divorced, had friends who've divorced, and watched my parents go through several divorces themselves, I'd never given much thought to how the concept of fault would affect marriages or divorce. I don't think the idea was even mentioned when I went through the process! I suppose I thought that all states have no fault divorce in the 21st century.

When I saw the news story, though, it brought many questions to my mind:

  • Would requiring fault result in lower divorce rates?
  • If it delayed or prevented divorce, would abuse increase?
  • How would the cost of divorce be affected?
  • What would the requirements to divorce be?
  • What kind of response would the public have?

I posted the question to an online forum where I discovered some eye-opening responses that encouraged me to delve deeper into the topic. What I learned surprised me.

Fault divorce requires more than simply blaming another person for their shortcomings.
Fault divorce requires more than simply blaming another person for their shortcomings. | Source
The Divorce Remedy: The Proven 7-Step Program for Saving Your Marriage
The Divorce Remedy: The Proven 7-Step Program for Saving Your Marriage
Avoiding divorce is the best way to support marriage. This book is by celebrated writer Michele Weiner Davis, whose methods have been shown to work well.
 

What is Fault in Divorce?

The basic idea behind "at fault" divorces is that a couple should be required to uphold their marital contract except when a grievous wrongdoing cannot be addressed in any way other than a complete severance of that marriage contract that said, "till death do we part." Until the 1970s, no divorces were granted on the basis of incompatibility - there had to be a state-sanctioned reason for it.

Although each state had its own laws, some of the most common reasons for finding fault were:

  • Adultery / cruelty
  • Physical abuse
  • Abandonment
  • Insanity
  • Inability to perform sexual relations (if they weren't disclosed prior to marriage)

In order to prove fault, it was necessary to provide evidence to the courts, which meant gathering witnesses, medical reports, photographs, and more. It also meant having a full-blown trial in which this very personal, otherwise private information would potentially become public knowledge.

There are a few defenses that can prevent a person from filing for an at fault divorce from winning their case even when they have substantial evidence. If the parties committed fraud to make it look like a fault existed when it didn't, for instance, or when the parties resume their relationship. (Beware that urge for break up sex!) If both parties committed faults, the courts may deny them a divorce. Finally, if the wronged party consented to the act they're claiming is a fault, they may find the court refusing to find grounds for dissolving their marriage.

This chart, reproduced by The Atlantic, is from Betsey Stevenson's and Justin Wolvers' 2007 study "Marriage and Divorce: Changes and their Driving Forces."
This chart, reproduced by The Atlantic, is from Betsey Stevenson's and Justin Wolvers' 2007 study "Marriage and Divorce: Changes and their Driving Forces." | Source

No Fault Divorce

California introduced no fault divorce in 1969. A no fault divorce allowed a divorce to take place for "irreconcilable differences" or incompatibility, and it no longer required mutual agreement or a hard-to-prove reason. A person could unilaterally file for divorce even if their spouse wanted to work things out.

Critics argued that making divorce easier would prove to dismantle the American family. Some sources still claim that the feminist movement and sympathetic lawyers were the reason for changes, which is likely to hold some truth. The 1970s were certainly notable for major strides in the push for equal rights for men and women, but it is unlikely that the legal environment was changed merely to further what women wanted!

Doomsayers said, "We told you so!" as divorce filings spiked. Indeed, this phenomenon took place in every state where no fault laws were enacted, but soon afterward, the rates settled again to a "new normal." This can be seen in the chart above, though the rates remained higher than previously even after settling.

By 1995, every state had some form of no fault divorce, though it remained a controversial issue in some areas. New York, for instance, was the last state to enact a no fault option, which some have said is due to a strong influence upon the legislature by certain churches.

A handful of people I discussed this with say that no fault divorce is an experiment, and one of them claimed it has shown itself to be a failure. I would hesitate to make such a claim, since these changes have been approved in every single state of the U.S., but the current bill seeking to abolish no fault options in Kansas could be a harbinger of things to come.

Economic and technological changes are quickly revamping our society. Although housewives gave way to feminism in the 1970s, the last few years have seen a resurgence of stay-at-home parents and single-income families, even while the worst recession of the last century plagued Americans. The social fabric is fraying at the edges as we re-examine civil rights for women, homosexuals, and racial minorities. It remains to be seen whether other states will reconsider their laws, but in the meantime, there are still strong arguments for and against both viewpoints, and emerging support for alternative, hybrid options.

Divorce Requirements by State

Though every state amended their laws to include incompatibility or "irretrievably broken" as grounds for marital dissolution, many states already required couples to be living apart for a period of time before they were permitted to divorce. In some cases, states did not have these requirements, but adopted them around the same they added no fault clauses to their statutes.

Some states, such as Mississippi, remain predominantly "at fault" states. Each state may have their own particular requirements. This video by a divorce attorney in Mississippi explains how that state requires a couple to agree on terms in order to grant an "irretrievable differences" based divorce, but otherwise would require a finding of fault.

The table below reveals states that only allow no fault, those that allow a fault or no-fault, and those which may require a period of living apart before a divorce may be granted. As seen in the video, individual states may have additional requirements or conditions that might result in a different choice than what is shown in the table below. Plus, laws can change frequently! Please check with an attorney before taking action based on this chart. Although it's deemed accurate, this information is not guaranteed. Source: The Effective Dates of No Fault Divorce Laws in All 50 States

 
No Fault ONLY
Fault or No Fault
Living Apart Requirement?
Alabama
 
X
2 years
Alaska
 
x
 
Arizona
X
 
 
Arkansas
 
X
18 monts
California
X
 
3 years
Colorado
X
 
 
Connecticut
 
X
18 months
Delaware
X
 
2 years
Florida
X
 
 
Georgia
 
X
 
Hawaii
X
 
2 years
Idaho
 
X
 
Illinois
 
X
2 years
Indiana
 
X
 
Iowa
X
 
 
Kansas
 
X
 
Kentucky
X
 
 
Louisiana
 
X
6 months
Maine
X
 
 
Maryland
 
X
1 or 2 years
Massachusetts
 
X
 
Michigan
X
 
 
Minnesota
X
 
 
Mississippi
 
X
 
Missouri
 
X
1-2 years
Montana
X
 
180 days
Nebraska
X
 
 
Nevada
 
X
1 year
New Hampshire
 
X
2 years
New Jersey
 
X
18 months
New Mexico
 
X
 
New York
 
X
1 year
North Carolina
 
X
1 year
North Dakota
 
X
 
Ohio
 
X
1 year
Oklahoma
 
X
 
Oregon
X
 
 
Pennsylvania
 
X
2 years
Rhode Island
 
X
3 years
S. Carolina
 
X
1 year
S. Dakota
 
X
 
Tennessee
 
X
2 years
Texas
 
X
3 years
Utah
 
X
3 years
Vermont
 
X
6 months
Virginia
 
X
1 year
Washington
X
 
 
W. Virginia
 
X
1 year
Wisconsin
X
 
 
Wyoming
X
 
 
No Fault Divorce Kit
No Fault Divorce Kit
Published since 1985, this kit offers basic divorce forms and guidance, plus has a toll-free help line.
 

CAUTION: ATTORNEY REPRESENTATION

A common mistake when filing for divorce is to think, "We agree on things, so we'll use one attorney to get it all done."

In many states, an attorney is only allowed to represent one party. If your spouse hires the attorney, that lawyer is obligated to uphold his fiduciary duty to your spouse. This means that he or she must work in your spouse's best interests, follow your spouse's directions, and be honest with your spouse, but they do not have the same obligations toward you.

I have heard many people who later said they did not understand this until long after their divorce resulted in them settling for far less than they otherwise would have!

Compare Divorce Costs and Options

Lowest Cost: Divorce Kits

While an amicable, do-it-yourself divorce kit can cost practically nothing, the court process is intimidating. A misunderstanding can cost time and require paying additional filing fees. Plus, the soon-to-be-singles may not have a good understanding of their options and only find out years later that they were shortchanged. While this may not be as critical when both partners are independently wealthy, in lower socio-economic families, this can have a huge impact on a family's quality of life for years to come. It can even affect future generations if poor planning results in a child later being unable to attend college or open a business.

Nonetheless, many divorces begin with a simple DIY kit like the one shown here. Although kits may offer forms for real estate and child custody, high emotions can interfere with verbal agreements, so consider this before purchasing any expensive kits! (The one shown here is valid for all 50 states and costs less than twenty dollars.)

Anytime child custody or real estate is involved, there are more motions to file. Even a do-it-yourself couple that agrees completely on how to distribute marital assets will shell out extra dollars for each form they have to file, which have run $40 - $75 per filing, in my more recent experience, but these costs vary by state.

Moderate Cost: No Fault Divorce with an Attorney

Hiring an attorney can save time and frustration. An attorney knows the laws and won't make an error that forces the couple to revamp their plans or fill out forms repeatedly. A couple that is parting amicably can spend anywhere from a few hundred dollars to a thousand or two if they know how they're going to divide everything. In my divorce, we had real estate, but did not plan to sell any of it, and we had no children left at home. It ran $450 to have the attorney complete the forms and file them. We just had to sign them when it was all done.

However, just because a couple elects a no fault divorce, the costs can run much higher if they do not agree on how to distribute their marital property or how to allocate parenting time. A partner who simply doesn't want the divorce may refuse to sign documents, delaying the divorce for months or years, which can escalate the costs tremendously!

Critics of no fault divorce argue that no fault divorce punishes those who want to salvage their marriage. Instead, a party who has "fallen out of love" or had an affair can file for divorce and the court sanctions them to abandon their families without requiring a finding of fault that could help the wronged partner protect the marriage or children. "(It) usurps the defendant's right to due process," says John, who says it's unreasonable for a loyal spouse to be stripped of half of their assets if just one person wants to end the marriage. Supporters say that no fault eases the burden on our legal system and may prevent abuse.

Highest Cost: At Fault


Generally speaking, an attorney will represent the parties in an at fault divorce. The stakes are high, and the partner who feels wronged may see "fault" as a means to getting some revenge in the form of a more favorable divorce settlement. The procedures are more complex, too, as proving fault may require getting depositions, going to trial, and entering evidence.

These divorces tend to be the most adversarial. Costs can run many thousands of dollars and the proceedings may not be resolved for several years.

Critics of fault-based divorce argue that states shouldn't have power over whether a couple stays together or not, and claim that requiring evidence and trials places greater strain on an already overburdened court system. Supporters feel like the process of requiring a substantial reason granting divorce protects victimized spouses, punishes spouses who have not upheld their marriage contract, and is within a state's right to decide since states typically offer tax breaks and other incentives to married couples.

Hidden Costs

While most states have formulas for calculating child or family support, the reality is that divorce rarely considers the future costs. Non-custodial parents may find a large chunk of their earnings going toward child support each month and may not see it providing a direct benefit to their children. Recently single people who keep the marital home may not have enough money to keep it, and find themselves facing foreclosure. In some cases, an individual may insist on (and get) the house or car, while the other person is stuck paying for it. For this reason, I encourage anyone planning a divorce to consult with a financial planner who specializes in divorce before filing any paperwork! (Look for a financial advisor with the CDFA® certification.)

Your Opinion

What do you believe is the best way for state laws to govern divorce?

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