At Fault vs. No Fault Divorce
Personal Injury Lawyer
There are a number of reasons why a couple would file for a divorce. The type of divorce a couple files determines the speediness of the divorce (do you have to be separated before you divorce or can you just be divorced?) as well as the division of the marital assets (i.e. property, money, valuables etc.). In this post, you’ll learn the differences between filing a “no fault divorce” and a “at fault divorce”.
No fault divorce
A no fault divorce is exactly what it sounds like – where both spouses declare that no one person was at fault for the divorce. No one needs to prove anything, they just need to give a reason that the state deems as an appropriate reason for divorcing. The most common reason is when a couple has “irreconcilable differences”. This means that the couple no long gets along and both no longer want to be married to the other. Even if one spouse petitions the court against the divorce, the judge will usually give a ruling in favor of the divorce stating that the petition is proof of the couple having irreconcilable differences.
No fault divorces are recognized in all states across the US, however some states require that the couple live separately for a time before they can officially file for a divorce.
At fault divorce
An at fault divorce is when one spouse states that the other spouse is the cause for the divorce. This fault needs to be proven in court. The most common reasons for an at fault divorce are adultery, abandonment, a prison sentence, impotence, and physical or emotional abuse.
Not all states recognize an at fault divorce. The ones that do recognize it do not require the couple to live separately before officially obtaining a divorce. This can be seen as a benefit for some couples trying to get divorced quickly. Another benefit to an at fault divorce is that the person who is filing for the at fault divorce is entitled to a larger portion of the marital assets when they divide up the property.
If both spouses claim the other is at fault it is called a comparative rectitude. A comparative rectitude is when the court decides who is the least at fault and grants them the petition of divorce.
Defenses against an at fault divorce
What if you do not want a divorce? Are there any defenses against a divorce?
With a no fault divorce, there really is not anything you can do to prevent the outcome of divorce, however there are some common defenses against an at fault divorce.
- Condonation – The condoning of the other’s behavior. For example, if the wife knew her husband was cheating and allowed it to keep happening.
- Connivance -When one spouse sets up a situation that allows the other person to do something wrong.
- Provocation – Inciting someone to do a certain act. If one spouse provokes someone to leave and they do, it’s not considered abandonment
- Collusion – When a couple doesn’t want to be separated before divorcing and they mutually decide to file an at fault divorce. However, later in the process, the person who agreed to be at fault changes their mind.
In most cases, regardless of the defense or who is at fault, the divorce will be granted. The court won’t force someone who wants to get a divorce to stay married. A same sex divorce lawyer in Austin, TX can help you know the differences between at fault and no fault divorce and will help you decide what type of fault situation is best for you.
Thanks to Gray Becker, P.C. for their insight into family law and at fault vs no fault divorce.