Every state requires that parties filing for divorce give a legally recognized reason for seeking to end the marriage. These are called grounds, which can be categorized as either fault or no-fault. A few states offer only no-fault grounds, while others recognize both types. Each state has its own set of grounds for divorce, although they are often quite similar. No matter what, grounds for divorce must be proven before the court will grant you and your spouse a final judgment of divorce.
People looking to get a no-fault divorce often do so because they are quicker and cheaper than fault divorces. As of October 2010, every state offers its residents a no-fault divorce option. In essence, a no-fault divorce means that neither spouse is considered to be responsible for the divorce. Some states require that you and your spouse live separate and apart for a certain amount of time before the court will grant the divorce. In addition, some states, like New York, will allow one party to dispute the other's allegation that the marriage is beyond repair. Often the court will require that couples in this situation obtain some form of marriage counseling before finalizing the divorce.
Grounds for no-fault divorce vary from state to state. Examples of no-fault grounds include: the relationship is no longer viable, irreconcilable differences have caused an irremediable breakdown of the marriage, discord or conflict of personalities destroyed the marital relationship, or that the marriage is irretrievably broken.
In fault divorces, one or both spouses claim that the breakdown of the marriage is the fault of the other spouse. You must include the grounds of fault in your petition for divorce or your answer to your spouse's complaint. Common fault grounds include adultery, abandonment (usually over one year), felony conviction with prison time, one spouse's refusal to have sexual relations, or mental or physical cruelty.
If a fault divorce goes to trial, each spouse will have to prove the grounds he or she claims are the reason for the divorce. Judges will consider evidence presented by both spouses and will normally rule in favor of the spouse who presents credible and convincing evidence. For example, a spouse claiming that the other committed adultery must prove the extramarital affair with evidence such as phone records, emails, letters, or possibly even direct testimony from the person alleged to be the other party to the affair. A spouse attempting to prove the grounds of cruelty may supplement his testimony with police reports, medical reports, photographs of abuse, or witness testimony.
Fault Divorce and Marital Issues
When ruling on property division and alimony, some state courts will take fault into consideration, while others won’t. Custody is affected by a finding of fault if the fault ground relates to the parent's fitness to care for the minor child. For example, a court will consider findings of fault relating to physical violence against a spouse or minor children, mental illness, and certain felony convictions when making a custody decision.