Fault vs No Fault Divorce

fault vs no fault divorce

In the beginning, all divorces had to be considered “fault” divorces. That meant one party was responsible for the action or actions leading to the divorce. In the era of “fault” divorces, states only granted divorces under a certain set of circumstances. Over time, however, most states have moved from fault vs no-fault divorce proceedings to completely no-fault grounds for divorce.

However, it’s important to note that a no-fault divorce state doesn’t mean there are black-and-white rules for handling divorce settlements and child custody. While anyone can petition for a no fault divorce, and have it granted, your actions still have an effect on a judge’s ruling.

California Was The First No Fault Divorce State 

California was the first state to sign no-fault divorces into law back in 1970. This means anyone can file for – and be granted – a legal divorce for any reason, typically stated as “irreconcilable differences.” The no fault divorce state also ensures you can move forward with a divorce whether your spouse signs the papers or not, and whether or not they want to get divorced.

While all of the other states have since filed suit and all honor no-fault divorce scenarios, 17 of the states are strictly no fault divorce states. These are:

  • California
  • Colorado
  • Florida
  • Hawaii
  • Indiana
  • Iowa
  • Kansas
  • Kentucky
  • Michigan
  • Minnesota
  • Missouri
  • Montana
  • Nebraska
  • Nevada
  • Oregon
  • Washington
  • Wisconsin
  • Washington, D.C. also has true no-fault divorce laws

The rest of the states allow the court to make a determination between whether a case is a fault or a no fault divorce. In states that still make a determination between fault and no fault divorce, reasons to file for a fault divorce include:

  • Adultery
  • Violence or malicious behavior
  • Abandonment for a specific amount of time
  • Incarceration for a specific length of time OR imprisonment for certain crimes
  • Incurable mental illness
  • An individual’s failure to disclose they are unable to have sex
  • Patterns of immoral or unethical behavior

It’s important to note that while no-fault divorces may be the standard in California, it does not mean that a person’s behavior won’t affect the judge’s final rulings regarding divorce settlements, division of assets, child custody, child support, etc.

Faulty Behaviors May Alter A Judge’s Final Rulings

While a judge won’t force anyone to stay married anymore, and they can’t state anyone’s fault or responsibility in legal court documents, there are situations that affect the outcomes.

Never hide income or assets

During the divorce process, you’ll have to disclose your income and all of your assets. This is not a time to be sneaky or hide anything as a way to prevent it from being split 50/50. California is also a communal property state, which means that without legal prenuptial agreements in place, all incomes and properties acquired during the marriage are split 50/50 in a divorce. There are certain exceptions for things like inherited property or money. 

Failure to disclose assets, especially if the judge suspects it was intentional, can mean your spouse gets the lion’s share of the assets as your punishment.

Think twice before moving out if you have children

Couples should always seek legal counsel, starting with mediation, if there are children in the picture. The actions you take in good faith can slant the bigger picture. For example, moving out and starting a new life elsewhere may seem like the best plan on paper because it keeps the peace and prevents children from being exposed to toxic fights or information that isn’t age-appropriate. 

Without a clearly written agreement between the two of you stating decisions around child custody, visitation, child support, etc., the person who moves out may lose. An angry spouse’s attorney can paint a negative picture about the parent who leaves, which can affect the terms of your child custody later on.

Take steps to protect your business

The business may seem like it’s yours while you’re married. When you go through a divorce, it might appear differently to the courts. Any money, time, or energy your spouse put into the business is taken into consideration. This can have a profound impact on a small business owner who can’t afford to “buy out” a spouse in the divorce. Take care to protect your small business if you suspect divorce is on the horizon. 

A record of illegal activity will have an impact

If you have a record, it can significantly impact how your child custody and visitation are decided. Clean up your act to the best of your ability, and consider attending AA meetings regularly (and meaning it) if addiction has been part of your story. 

The best path to a no fault, no contest, and fair divorce is to work with a family law specialist who can provide insight, advice, and legal support. Contact Gerard A Falzone to schedule your first appointment. Our firm prioritizes mediation whenever possible, but we’re also prepared to advocate for you in the courtroom.