Why File for a Fault Based Divorce?

by Elizabeth Rayne

    When a court finds that one spouse is at fault for a divorce, it may bring personal satisfaction or vindication for the other spouse; it may also have an impact on the divorce decree in terms of alimony, property division and custody. On the other hand, divorces based on fault may be more time consuming and costly for the couple. The availability and usefulness of filing for a fault-based divorce is highly dependent on the laws of the state where you live.

    State Law Overview

    Before considering whether to file for a divorce based on fault, you must determine whether your state allows you to do so. Many states, including Oregon and Florida, are purely no-fault states, meaning you may not place blame on either spouse when filing for divorce. Instead, the only reasons you may ask for a divorce are on the grounds of irreconcilable differences, irretrievably breakdown of the marriage or similar grounds. All states recognize no-fault divorce, while some also allow couples to divorce on fault-based grounds, such as adultery, bigamy or cruelty.

    Separation Period

    In many states, if you pursue a no-fault divorce, you must live apart for a period of time before you may file the divorce petition. The mandatory separation period may be six months to as long as five years, depending on your state. However, filing on fault grounds generally means you do not have a mandatory separation period, so you may file for divorce even if you and your spouse are still living together.

    Effect on Divorce Decree

    In some states, proving that one spouse is at fault for dissolving the marriage may have an impact on property division, alimony and custody. Even if you filed for the divorce on no-fault grounds, in some cases you may bring up marital misconduct to get a better divorce settlement. Marital fault most often comes up when determining alimony or spousal support, as many states consider fault when making a spousal support determination. In terms of property division, whether or not fault will be considered depends on whether you live in an equitable distribution state, which may consider fault in deciding how to fairly divide property between the spouses. In community property states, such as California, the court typically divides marital property equally without regard to marital fault. Additionally, custody determinations are made based on the best interest of the child and marital fault may only be considered if the misconduct affected the child in some way or demonstrates a parent's unfitness to take care of the child.

    Drawbacks

    In order to succeed in filing for a fault-based divorce, you must provide evidence and convince the court that the other spouse's misconduct caused the dissolution of the marriage. Furthermore, the other spouse may be less likely to agree to a divorce based on fault, particularly if you are placing the blame on him. As a result, you are more likely to have a lengthier and more costly divorce proceeding.

    About the Author

    Elizabeth Rayne earned her J.D. from Penn State University and has been practicing law since 2009, advising clients on issues ranging from employment law to nonprofit management. For two years, she served as a contributing editor for the "Vermont Environmental Monitor."

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