In pure no-fault states, neither spouse can accuse the other of committing an act that ended the marriage. Courts will grant a divorce only because you’re not getting along anymore. Some states call this irreconcilable differences while others call it irretrievable breakdown of the marriage or incompatibility. In contrast, some no-fault states offer none of these options. In these jurisdictions, you can only cite marital separation. For example, North Carolina's only no-fault option is that you and your spouse have lived in separate residences for a year.
In the states that recognize fault grounds, you may have a wide array of choices if you want to cite something other than irreconcilable differences or its equivalent. For example, Tennessee offers 13 fault grounds. In addition to the usual ones -- such as adultery, desertion and cruelty -- you can file for divorce in this state if your spouse committed a crime that has made him “infamous.” In North Carolina, if you choose not to file for divorce based on a one-year separation, your only other option is that your spouse is incurably insane. Other common fault grounds include homosexuality, habitual drug or alcohol use or addiction, and impotence.
Pros and Cons of Fault Grounds
In states that offer the option of fault grounds, there are sometimes advantages to citing something other than irreconcilable differences or its equivalent. In some states, behavior such as adultery, cruelty or desertion can result in the wronged spouse receiving a greater portion of marital property. Some states will not award alimony to a spouse who has committed adultery. In states where the only no-fault ground available is a lengthy separation, you can hasten your divorce along if you cite fault grounds instead. You can usually file for divorce immediately rather than waiting out the statutory separation period. The downside is that you run the risk of antagonizing your spouse if you cite fault grounds. If your divorce is reasonably amicable and then you accuse your spouse of cruelty in your divorce complaint, it can cause anger and resentment. This might make negotiating a marital settlement impossible and you could end up going to trial.
If you cite irreconcilable differences or your state’s equivalent, your spouse has no way of contesting your grounds. He can only contest the portions of your divorce complaint in which you ask for property, spousal support or custody. The fact that you want a divorce and he doesn’t is proof that your marriage is irretrievably broken, that you're incompatible, or that you have irreconcilable differences. However, your spouse can contest fault grounds and probably will if it means you will get more property or he will have to pay you alimony. If this occurs, you must either go through the arduous legal process of proving to the court that he did what you’ve accused him of or you'll have to amend your complaint to cite no-fault grounds.