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What is a “fault” divorce?

July 16, 2016 Our Blog

You may have heard of a “no fault” divorce, but have you heard of a fault divorce? A fault divorce is when one party blames the other for causing the divorce.

History of Fault Divorces

In the past, couples weren’t allowed to divorce each other simply because they wanted to. One party had to have done something bad that made the other party want to end the marriage.

Modern Fault Divorces

Today, every state in the U.S. recognizes a no fault divorce. Some states are even getting rid of fault divorces. However, fault divorces still do exist. In order for a divorce to be a fault divorce, one party has to allege fault by the other party.

Fault Divorce Grounds

Each state creates its own divorce rules, including the list of issues that may be considered grounds for a fault divorce. These issues include:

• Cruelty
• Homosexuality
• Adultery
• Felony
• Sexual incompatibility
• Mental instability

Depending on the state, there could also be other grounds for divorce. Whatever grounds you decide to say lead to the divorce, it’s necessary for you to have proof. Let’s say you want to divorce your husband because you feel that your spouse is cheating. You’ll need more than a hunch; you’ll need real proof. The court will need to review evidence, such as photos of your spouse with the other person or witnesses that saw them spending time together.

Benefits of a Fault Divorce

If you can prove your spouse’s fault and you also live in a state that recognizes a fault divorce, you could benefit from the filing. Sometimes, a fault divorce can go through quicker than a no fault divorce. Fault may also be considered when assets and spousal support is being decided upon.

Fault Defenses

While defenses will vary from case to case, here’s a short list of some of the most common fault defenses:

• Connivance: This is when adultery has taken place but one spouse knew about the adultery and allowed it to continue. In this case, one party cannot use adultery against the other.

• Recrimination: This is when both parties are doing the same thing. For example, if one spouse accuses the other of adultery but they are also committing adultery themselves, this cannot be used as a fault.

• Collusion: This is when both spouses agree to make up a story of fault in order to get a fault divorce. While this is a special case, it’s not uncommon.

• Condonation: This is when the fault was accepted and forgiven. For example, if one spouse committed adultery and the other spouse forgave them and moved past it, this cannot be used as a fault in divorce.

• Provocation: This is when one spouse led the other into the act that’s considered a fault.

If you want to defend yourself against a fault divorce, it’s going to be similar to defending yourself against another type of claim. You’ll want to gather witnesses and other proof in your defense. You’ll need to prove that the fault your spouse is trying to prove is false.

Sometimes in a fault divorce, both parties claim that the other one is at fault. This makes the case less of a trial and more like meditation. The judge will decide which party has the stronger case. If you’re in the midst of a fault divorce, you’ll want to find legal representation, particularly if your spouse has an attorney. Contact our New York divorce attorneys today.

The world of divorce law is complicated. You may have heard about “no fault” divorces, as they’re the most common type of divorce filed in today’s modern world. But have you ever heard about a fault divorce? Fault divorces are the opposite of no fault divorces. They’re exactly what they sound like. This divorce proceeding occurs when one party finds the other party at fault for the divorce. In short, one spouse blames the other for breaking down their marriage.

The History of Fault Divorce

Historically, marriage has been an institution that has undergone many different definition changes. Couples couldn’t end their marriages simply because they didn’t want to be in the relationship anymore. A marriage was considered a commitment, and people had to stick out that commitment even if they were miserable. The exception was if one spouse had done something to betray the other, something that broke down the trust and foundation of the overall marriage.

No fault divorce is a relatively new concept. Though it’s only been popular for a few decades, the concept of no fault divorce has far eclipsed fault divorces. Sometimes marriages break down because people are too different and don’t wish to reconcile that. When no party is at fault for the fraying of the relationship, the divorce is called a “no fault” divorce.

Fault Divorce in the Modern World

Nowadays, the cultural occurrence of divorce has shifted entirely. Rather than fault divorces being the only type of divorce allowed, they tend to be the rare exception to the rule. Every single state in the United States recognizes no fault divorce. But not every state recognizes fault divorces. Some states have done away with the concept of a fault divorce entirely.

With that said, fault divorces still exist, even if they’re rarer than they used to be. For a divorce to be filed as a fault case, the party who files the papers must allege that the other party has done them wrong. The divorce papers are technically a lawsuit, but you’re suing to dissolve your marriage.

Grounds for Fault Divorce

Every state has individual rules about divorces and separations. In states where fault divorces still exist, there are different potential reasons for the divorce. Some have been used historically but would have a hard time holding up in court today.

One of the main issues that causes a fault divorce is cruelty or abuse. If one spouse has caused psychological, emotional, physical, or sexual harm to the other, there are grounds for a fault divorce. This type of divorce will often proceed like a lawsuit. It can be contentious, so it’s important to get a divorce lawyer who is skilled at negotiating.

Another cause that’s historically been cited is homosexuality. If a person married someone who couldn’t love them back, and their spouse didn’t disclose this, that can be grounds for a fault divorce in some states.

Adultery is another one of the most common causes of a fault divorce. Adultery involves one spouse betraying the other by breaking the vows they’ve made for their marriage.

If one spouse commits a felony, this is also grounds for a fault divorce in certain states. It can be considered a betrayal of the pact the marriage was built on.

Mental instability may also be grounds for fault divorce. Most commonly in today’s world, “mental instability” refers to a substance use disorder. If the mentally ill spouse is seeking mental health treatment, they may have grounds to contest the fault clause of the divorce.

If you want to file a fault divorce, you need to provide proof that your spouse has created adequate grounds. You’ll need to research the specific laws about fault divorces in your state to make sure your grounds apply.

Fault Divorce Benefits

When you provide adequate proof that your spouse is at fault, and your state recognizes fault divorces, the filing could have benefits for you. Fault divorces are sometimes processed more quickly than no fault divorces. The fault may also be taken into account during the allocation of assets and spousal support.

Defenses for Fault

If adultery has taken place, but the filing spouse knew about the adultery and let it go on, adultery can’t be cited as the grounds.

If both spouses have committed the same betrayal against each other, neither can be found more guilty than the other.

Collusion occurs when spouses work together to fabricate a story so they can get a fault divorce.



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