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What is a fault divorce?

UPDATED: February 20, 2013

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A fault divorce occurs when one party is blamed by the other and viewed as causing the divorce. Traditionally, couples were not just able to divorce whenever they wanted to. One party to the marriage must have done something that warranted the other wanting to end the marital union.

Today, however, all states recognize no fault grounds for divorce and many are doing away with the concept of fault divorce entirely. When fault still exists, however, it requires the spouse alleging fault to prove his or her assertions. 

Grounds for a Fault Divorce

Each state sets its own rules for divorce, including its own list of situations that can lead to a fault divorce. These situations are referred to as "grounds" for divorce. Some common grounds for divorce include:

  • Adultery
  • Cruelty
  • Homosexuality
  • Inability to engage in sexual intercourse
  • The commission of a felony by one of the parties
  • Mental instability by one of the parties

There may also be additional grounds for divorce, depending on where you live and the specific rules in that state. It is important to be aware, however, that whatever grounds you choose, you are responsible for proving those grounds.

For example, if you wish to get a divorce because you believe your spouse has committed adultery, you will need more than just a feeling. You will need solid evidence for the court to review. Photographs of your spouse with the other party or witnesses are evidence commonly used in proving adultery.

Benefits of Filing for a Fault Divorce

If you have clear evidence of fault and your state recognizes a fault divorce, then there may be some benefits associated with filing one. In some cases, a fault divorce can be obtained more quickly than a no fault divorce. Some jurisdictions also take fault into account when dividing up assets and/or instituting spousal support orders. 

Common Fault Defenses 

While every case is different, there are some examples of common fault divorce defenses:

  • Connivance – defends against adultery, i.e. if your spouse knew about it and let it go on, or even encouraged it, he or she cannot use it against you in divorce.
  • Condonation – the act being claimed against you was accepted, forgiven, and moved past by the other spouse (often used in adultery).
  • Recrimination – the spouse is doing the same thing they accuse you of doing. If both spouses did the same thing, neither can use the action in court against the other.
  • Provocation – the spouse led you into the act, or forced you to do it by their own actions.
  • Collusion – this is a special situation (but not uncommon) where the spouses agree to create a story to take to court in order to get the divorce.

Defending yourself against fault divorce charges largely involves the same process as defending yourself against any legal claim. You will need to have witnesses and other types of reliable information as defenses in order to prove that what your spouse is accusing you of is false.

Keep in mind that in a very large percentage of fault divorce situations, both sides are claiming that the other is at fault. In this case, it is less like a trial and more like a mediation, where the judge decides which of the two has a stronger case.

Seek Legal Assistance

If you are involved in a fault divorce, it is highly recommended that you seek legal representation. This is especially true if your spouse has hired a lawyer.  


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