Both Fault and No-Fault divorce relate to the reason for calling for divorce, so why is there a need to specify? Well, as a child support lawyer, like from Brandy Austin Law Firm, PLLC, will tell you, the reason for the divorce is different and the distribution of property in the divorce is different and affected by Fault or No-Fault divorce. A fault divorce requires the spouse that is seeking the divorce to prove the other party is at fault and that requires a divorce. In a no-fault divorce, no blame is assigned to either party.
Grounds for a Fault divorce
Cruelty- this is defined as “willfully causing pain or suffering to your spouse.”
This is a relative term, where each case must be determined on its own fact. In order for a judge to uphold cruelty, the cruelty needs to be a willful, persistent infliction of unnecessary suffering, which can be either mental or physical.
Adultery- this is defined as “voluntary sexual intercourse of a married person with one that is not the husband or wife of the offender.”
Can be proven with hard proof or circumstantial evidence such as receipts or bank statements showing purchases of gifts, jewelry, loans, or trips for a lover. It is also important to note that acts of adultery after you file for divorce and are no longer cohabitating can still be used to support a fault-based judgement.
Felony criminal conviction
If your spouse is convicted of a felony, then that is grounds for divorce. If during your marriage your spouse was convicted of a felony, imprisoned for at least one year, or has not been pardoned, then you have grounds for a fault divorce.
If the other spouse has voluntarily left the complaining spouse. They must also have left with the intention of abandonment and remained away for at least one year.
- Other uncommon grounds
- Alcohol or substance abuse
- Impotence or infertility
- Cultural or religious differences
Grounds for a No-Fault divorce
No fault divorces do not require a reason for the divorce or any blame to be placed on either party. However, they still have to show why exactly a court should grant the divorce. Common grounds for a no-fault divorce include:
This is the common ground for divorce. This claim only means that the divorce is no longer endurable, insufferable, and intolerable. To qualify for this you have to show that the marriage has become unsupportable due to the conflict and that the conflict destroys the marriage. You should also have no reasonable expectation that the parties are getting back together.
The court may grant divorce without fault if they have been living apart for at least three years without cohabitation.
There are no defenses available for a no-fault divorce. If one party is objecting to the divorce, that objection itself is seen as an irreconcilable difference that would justify the divorce. There are several defenses to a fault divorce.
Condonation- this is someone’s approval of another’s activities. If one spouse does not object to the husband’s actions, such as adultery, then the husband could argue that the spouse condoned the behavior.
Connivance- this is setting up a situation so that the other person commits a wrongdoing.
Provocation- this is when one party provokes the other party into committing a certain way.
Collusion- this is when both parties agree to collude that there was a problem, when there really wasn’t in order to get a quicker divorce.
These defenses are rarely used, because proving a defense would require witnesses and involve a lot of time and expense. Efforts will likely come to nothing, as there are high chances that the court would grant the divorce, eventually.