How Does a No-Fault Divorce Work? Guide and FAQ

A “no-fault” divorce is easier than a traditional “fault divorce” because it takes out an adversarial element. In the past, a court would not grant a divorce unless a party alleged adultery, cruelty or other inflammatory grounds. Now a divorce can simply be had by two lovely people who can’t live together anymore. Here are common questions about no-fault divorces and how they work.

A no-fault divorce is one where neither party blames the other for the impending divorce. Before the first no-fault statute passed in 1969, the party filing for divorce had to plead reasons (or “grounds”) for the divorce, including desertion, adultery or cruelty. Even though a court could use its discretion to grant a divorce without a finding of fault, there was still a risk that the court could deny the request.

No-fault grounds include “irreconcilable differences,” “irretrievable breakdown of the marriage” or “incompatibility.” The terminology of no-fault grounds varies between states, but they all mean the same thing – the marriage no longer works.

Advantages of a no-fault divorce include:

• Less incentive to falsify evidence, e.g., claim infidelity when it never happened
• Focuses on property division and child custody
• Trials are quicker than fault trials due to limited-issue focus
• Privacy (fault divorce pleadings and trials often happen in open court)
• Less expensive

The most cited disadvantage is that a spouse’s bad behavior will not influence spousal support and property division. For example, if a spouse alleges infidelity in a no-fault divorce, it has no impact on the final divorce decree. However, in a fault divorce, infidelity can allow larger property awards and spousal support to the wronged party — although a spouse will have to prove that allegation in a trial if the other party denies it.

However, certain allegations affect child custody proceedings, even in a no-fault divorce. If a spouse is dangerous to the children and has a pattern of abuse or neglect, a court may determine they receive limited or supervised visitation. Courts may deny visitation altogether in the most egregious cases.

All U.S. states offer a no-fault option in their divorce statutes. For 20 states and territories, no-fault is the only option. They include:

There are 30 states that allow for both no-fault and fault divorces. When filing your divorce petition, you must declare your preference between fault and no-fault.

Unlike no-fault divorces, in fault divorces, you must be more specific about why you blame your spouse for the breakdown of your marriage. Irreconcilable differences do not work in a fault divorce. In most states, you must plead one or more of the following:

• Adultery
• Cruelty
• Confinement in prison or a mental institution (usually for at least three years)
• Impotence

States may have additional grounds for fault divorces. For example, Alabama’s divorce grounds still include bestiality (“crimes against nature”), drug abuse, lack of financial support and premarital pregnancy by another partner.

Once you plead a ground, be prepared to present evidence at trial. Fault divorces proceed like civil trials where both parties present evidence and testimony, and a judge decides in favor of one side. Don’t proceed with a fault divorce if you plan to manufacture evidence or make unproven claims. That strategy can backfire on you!

No. The only item in a no-fault divorce that remains uncontested is that the marriage is irretrievably broken or other no-fault ground. Even if you disagree with your spouse and don’t want to divorce, the court will not hear those arguments. The law considers it bad public policy to force someone who wants a divorce to remain married.

However, that doesn’t mean you have to agree to everything else. You can still dispute your spouse’s proposed property division, debt responsibility and child custody terms.

Your divorce only needs to be uncontested if you file an online divorce. That applies to fault and no-fault divorces.

Are you thinking of using an online service to file for divorce? See how the top online divorce companies compare in price, quality and service offerings. As always, we encourage you to do your own independent research to determine which provider is best for your needs.

Legal Disclaimer: This article contains general legal information but does not constitute professional legal advice for your particular situation and should not be interpreted as creating an attorney-client relationship. If you have legal questions, you should seek the advice of an attorney licensed in your jurisdiction.