Once you have decided to go through with a divorce, it is important to determine how you want to move forward. While most divorces these days are filed as “no-fault,” meaning neither side is saddled with taking the blame for the deterioration of the marriage, many states still offer the option of filing a “fault” divorce.
This method involves one spouse accusing the other of being the cause of the failed marriage.
There are several reasons many wish to file an a fault divorce, including bypassing mandatory separation periods; however, it is important to weigh the potential benefits against the probable increase in expense and difficulty.
If you are just trying to get the divorce finalized and lack the necessary evidence to prove your case, it may turn out worse for you in the end.
What is a no-fault divorce?
Every state offers the ability to file for divorce without placing the blame for marital breakdown solely on one spouse’s shoulders.
Most states will have several reasons to choose from when seeking a no-fault divorce, such as “incompatibility” or “irreconcilable differences,” which gives anybody a way out if they are no longer happy in their marriage.
A no-fault divorce hopefully creates a situation that is more amicable, as one side isn’t throwing all of the responsibility and guilt for the marriage’s failure onto the other.
This is beneficial when it comes to negotiating a settlement out of court: If neither side feels completely alienated, then they are probably more likely to settle without needing a judge.
However, some states do have very long separation periods — Arkansas requires 18 months without cohabitation — which can be frustrating for people who simply want their divorce to be finished.
Fault divorce offers an alternative to these mandatory separation periods if you can prove your spouse committed an applicable form of misconduct.
Grounds for a fault divorce
Laws and standards will vary depending on state, but general reasons to seek an a fault divorce include cruelty, adultery, desertion and imprisonment.
While the biggest advantage is usually getting around the mandatory separation periods, some states also award a larger share of the marital assets or reduce a maintenance award if it can be definitively proven that one party was guilty of the accused behavior.
This can be even more of an incentive to blame your spouse for some major misdeed — one that may not be entirely accurate or that you may not have sufficient proof to support.
If you are just looking for a quick way out or a bigger chunk of the marital pot, you might find that seeking an a fault divorce is more trouble than it’s worth.
Problems with fault divorce
As with any divorce, the burden of proof lands on you to convince a judge that your spouse committed some kind of serious marital misconduct.
If you have hard evidence to support your claims, then it may be worth asking your attorney if a fault divorce is a viable option.
On the other hand, if your evidence is speculative or would incur significant expense to prove, such as hiring a private investigator, you may wish to save the time and potential alienation of your spouse by simply filing a no-fault divorce from the start and putting up with the separation time.
If the defendant is found to be innocent of the charges during a fault divorce, the case is then treated like a no-fault divorce.
All of the time, effort and resources you spent trying to prove the offense have been wasted. Not only that, but your spouse is probably none too pleased with having been dragged through the mud.
With the emotional state of parties heightened during a fault divorce, it can be much more difficult to get a rational settlement.
Finally (and most importantly), judges do not like to hear about fault.
They do not care whose fault the divorce is, they just want to finish the case. More and more judges are splitting property evenly and encouraging attorneys to ignore misconduct, and although allegations of marital misconduct are very common, receiving a more beneficial outcome is not.
There are definitely situations where a fault divorce could apply. However, with the prevalence of no-fault divorce, the difficulty in proving your allegations and the tendencies of judges to avoid placing blame, it is typically not worth the trouble.
Nevertheless, if you think you have definitive proof and your state allows fault divorce, feel free to ask your attorney.