What is a "no fault" divorce?

"No fault" divorce describes any divorce where the spouse suing for divorce does not have to prove that the other spouse did something wrong. All states allow divorces regardless of who is at "fault."

To get a no fault divorce, one spouse must simply state a reason recognized by the state. In most states, it's enough to declare that the couple cannot get along (this reason goes by such names as "incompatibility," "irreconcilable differences," or "irremediable breakdown of the marriage").

In nearly a dozen states, however, the couple must live apart for a period of months or even years in order to obtain a no fault divorce.

What is a "fault" divorce?

A fault divorce may be granted when the proper grounds for divorce are present and at least one spouse files for it.

The traditional fault grounds are:

• cruelty (inflicting unnecessary emotional or physical pain) -- this is the most frequently used ground for divorce
• adultery
• desertion for a specified length of time
• confinement in prison for a set number of years, and
• physical inability to engage in sexual intercourse, if it was not disclosed before marriage.

Why choose a fault divorce? Some people don't want to wait out the period of separation required by their state's law for a no fault divorce. And in some states, a spouse who proves the other's fault may receive a greater share of the marital property or more alimony.

Do all states allow a "fault" divorce?

No, 15 states offer no fault divorce only. This means that a no fault divorce is the only option even when there has been substantial wrongdoing.

The other states allow a spouse to select either a no fault divorce or a fault divorce. For more information, see below.

What happens in a fault divorce if both spouses are at fault?

When both parties have shown grounds for divorce, the court will grant a divorce to the spouse who is least at fault under a doctrine called "comparative rectitude." Years ago, when both parties were at fault, neither was entitled to a divorce. The absurdity of this result gave rise to the concept of comparative rectitude.

Nowadays, it's usually one spouse who files the divorce papers first; if the other person disagrees with the "fault" accusations, he or she can file an "answer" to the divorce complaint.

While this may go a long way to soothe someone's pride, it adds up to a longer divorce process and more money spent on legal work and court filings.

What type of divorce is allowed in each state?

The first two columns of this chart sets out whether a state allows a "fault" divorce or a "no fault" divorce. The last two columns of the chart show whether a separation is required before a no fault divorce will be granted, and how long the separation must be.

Grounds for Divorce by State

¹Separation-based divorce must also allege incompatibility.
²Must allege irretrievable breakdown and separation for no-fault; if both parties consent, two years may be reduced to six months.
³Divorce will be denied if one party contests ground of incompatibility.
⁴Separation-based divorce allowed only if there are no children.
⁵May be reduced to six months if there are no children.

Can a spouse successfully prevent a court from granting a divorce?

One spouse cannot stop a no fault divorce. Objecting to the other spouse's request for divorce is itself an irreconcilable difference that would justify the divorce.

A spouse can prevent a fault divorce, however, by convincing the court that he or she is not at fault. In addition, several other defenses to a divorce may be possible:

• Condonation. Condonation is someone's approval of another's activities. For example, a wife who does not object to her husband's adultery may be said to condone it. If the wife sues her husband for divorce, claiming he has committed adultery, the husband may argue as a defense that she condoned his behavior.