Fault and No Fault Divorce

By Staff Writer

Not all divorces need to result in contentious and bitter litigation. Due to the numerous divorce cases that are filed on a yearly basis and the limited judicial resources, Courts encourage settlement. Judges are usually very accommodating in assisting parties to reach amicable settlements of their divorce cases. This is also in recognition of the fact that parties will be happier with a result which they helped achieve, rather than an Order imposed on them from a third party.

States have different rules which govern how, and if, you are entitled to a divorce. In some states, known as “no-fault” states, anybody is entitled to a divorce if they so desire one. Provided that the residency and other procedural requirements are met, a divorce will be granted to a party if he or she so requests

Not all states are “no-fault”. In some states, you must prove that your spouse is guilty of marital fault in order to be entitled to a divorce. These states have specific grounds for divorce that, if established, will entitled you to a divorce. Similarly, if you are unable to convince the Court that your spouse is guilty of sufficient fault, your request for a divorce will be denied.

If you live in a “fault-state”, you should consult with a local attorney to ascertain the potential grounds for divorce that may pertain to your case. Examples may include adultery and physical abandonment for a specified period of time. A common misconception is that, if you alleged “irreconcilable differences”, that you will be granted a divorce. While “irreconcilable differences” is a ground for divorce in some states, it may not be applicable in your state. Divorce grounds vary from state to state and, due to the specific requirements which must be met to establish grounds for divorce, a particular ground that on first glance seems applicable, may not apply to the facts of your case.

Due to the judicial interest in resolving cases and reducing litigation, grounds states usually provide a mechanism for obtaining a divorce in situations where fault-based grounds do not apply. An example of this is in New York where, if a parties are able to reach a settlement of their case and reduce the terms of the settlement to a written Separation and Settlement Agreement, after one year, provided that the parties have complied with the terms of the Agreement, both parties will have automatic grounds for divorce.

Other states have expedited procedures for obtaining an uncontested divorce. In these states, you must, similarly, have settled the outstanding issues with your spouse. If, after reaching a settlement, you will be able to present your agreement to the Court and have the terms of the same become the terms of your divorce.

If you and your spouse have an existing agreement, or if you believe that one can be reached, you should consult with a local attorney to learn of the particular rules and procedures that exist in your state.