Some divorces involve a level of fault. A partner lies, cheats, or steals, and the relationship falls apart. In some states, the aggrieved party could use the trauma to incite the divorce, and those mistakes could get that person a bigger slice of the estate.
But in no-fault states, no one must discuss mistakes to start the divorce. And one party’s trauma doesn’t automatically result in a change in estate distribution.
What is a fault divorce?
In states like Arkansas, couples must cite very specific grounds for divorce, such as these:
- Impotence
- Habitual drunkenness
- Adultery
One couple cites the reason in divorce papers, and the other party can respond. At this stage, the party at fault could contest the grounds. Without proof, the entire divorce process could fail.
In fault states, many couples hire private investigators to dig up proof of their partner’s problem. That evidence could cause additional emotional damage, even if it provides grounds for divorce.
What is a no-fault divorce?
In states like California, no one has to prove someone did something wrong to start a divorce case. This no-fault divorce process means one party can proceed with the divorce even if the other person doesn’t want one. There’s no way to contest that person’s filing, as you can’t prove the other doesn’t want to be married anymore.
Fault vs. no-fault divorce: What’s the difference?
In all states, divorces begin when one party files official paperwork with the court system. The main difference between fault and no-fault divorces involves the stated reason for a divorce.
For a fault divorce, one party must pick a divorce trigger. If the other party disagrees, they can go to court over whether the reason for the divorce is valid.
For a no-fault divorce, one party cites "irreconcilable differences," and the break-up moves forward. The reason for the divorce isn't examined, and the case proceeds accordingly.
No-fault divorces typically move faster and are, therefore, less expensive than their fault-based counterparts. But people who absolutely do not want to get divorced may be dismayed that they can't toss out the reasons for the split in court.
Frequently Asked Questions
What is the difference between fault and no-fault divorce?
No-fault divorce doesn’t require proving misconduct—just that the marriage is broken. Fault divorce requires showing specific wrongdoing like adultery or cruelty.
Which states allow fault-based divorce?
Some states allow both types, while others only allow no-fault. You’ll need to check your state’s rules.
Does filing for fault affect property division or support?
In some states, yes. Proven misconduct can impact how property or support is awarded. In no-fault states, it usually doesn’t.
Is no-fault divorce faster or easier than fault divorce?
Yes. No-fault cases are typically less stressful, less expensive, and resolved more quickly since no proof of misconduct is needed.
Can custody be affected by fault in a divorce?
Custody is based on the child’s best interests. However, abuse, neglect, or substance misuse can affect custody if it impacts the child’s safety.
Why do most people choose no-fault divorce?
It avoids drawn-out conflict, saves money, and allows for a smoother resolution.
How to Understand Fault vs. No-Fault Divorce
Check your state’s laws
See if your state allows both types of divorce or only no-fault.
Understand no-fault divorce
Know that you only need to state irreconcilable differences or an irretrievable breakdown.
Understand fault divorce
Realize that proving fault requires evidence of misconduct such as adultery or abandonment.
Consider impacts on property and support
In some states, fault can influence property division or spousal support.
Evaluate custody issues
Custody is determined by children’s best interests. Fault matters only if it affects parenting ability or safety.
Decide which approach to take
Choose the option that aligns with your state’s laws and your own goals for resolution.
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References
2010 Arkansas Code Title 9. Justia.
Divorce in California. Judicial Branch of California.
What Is An Uncontested Divorce? (July 2022). Forbes.
The Lost History of No-Fault Divorces. (December 2022). JSTOR Daily.
