What is the difference between Fault and No-Fault Divorce?

 

When filing for divorce, a spouse is presented with usually two options. The spouse must choose if they wish to have a fault grounds divorce, or no-fault grounds divorce.

No-Fault Grounds
This type of divorce does not particularly “blame” either spouse for the failure of the marriage. Instead, the no-fault grounds is usually based on “irreconcilable differences” or “irreparable breakdown of the marriage”, in accordance to the state laws. Basically, the spouses do not get along and the marriage is past the point of repair. There are many states who recognize no-fault grounds if the couple has been separated for a certain amount of time. Also, some states require the spouse who alludes to irreconcilable differences or an irretrievable breakdown of the marriage to be separated for a certain period of time BEFORE they can file for divorce.

When using this ground for divorce, neither spouses need to testify in court about why their marriage has failed. They must only prove that they are eligible for divorce by meeting residency requirements (a spouse must live in NJ for 1 year prior to divorce).

Fault Grounds
A spouse may choose to get a fault grounds divorce if they do not meet the requirements for a non-fault grounds divorce. Other reasons could include they may acquire some other benefit from a fault grounds divorce. The spouse filing for fault grounds must prove the fault in court. Common fault grounds for divorce include:

Cruel and Inhumane Treatment
This conduct includes extreme cohabitation threats that the other spouse’s physical or mental health is being endangered. Ongoing physical or emotional abuse may be proof of this ground

Adultery
In New Jersey, you do not have to meet the required one year residency prior to filing if you are filing under the grounds of adultery. It is a common fault-based divorce. This is proven with circumstantial evidence, such as a spouse and third party have become romantically involved and had the opportunity to commit adultery. Judges must decide whether or not adultery occurred by the totality of the circumstances. There are specific defenses to adultery, such as being guilty of the same conduct or forgiving the conduct and resuming sexual relations with the adulterous spouse.

Incarceration
In New Jersey, a spouse must be imprisonment for 18 or more consecutive months. The action is not commenced until after the spouse’s release, provided that the parties will not continue cohabitation following imprisonment.

Institutionalization
If a spouse is confined for a mental illness for 24 or more consecutive months, the other spouse may file under these grounds.

Substance Abuse
If one spouse has a habitation to drugs or alcohol for 12 or more consecutive months, the other spouse may file under these grounds.

Desertion
Abandonment occurs when one spouse voluntarily leaves the other with the intent to desert him or her. In New Jersey, 18 or more consecutive months must pass before filing under these grounds.

In some states, proving fault can be very difficult depending on reconciliation during the separated months. A judge must have a hard job of making sure the evidence against a spouse is authentic and reasonable. Also, proving fault can impact the financial outcome of a divorce. For example, if a judge finds that a spouse commit adultery and used marital assets to supplement a lover’s lifestyle, he or she may consider this fact when determining how to distribute property or how much alimony to award. In some states, a spouse is ineligible for alimony if he or she committed adultery or was proven to be abusive in the relationship.

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