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No-fault divorce vs. fault divorce

While one is traditionally faster and cheaper, the other offers more financial benefits if you’ve been wronged.

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When you’re ready to legally end your marriage, you need to select the grounds for divorce, which can be either no-fault or fault. Every state in the US has some version of no-fault divorce, where you don’t have to prove your spouse committed any wrongdoing. On the other hand, fault divorces cite one party as the cause of the marriage breakdown. But these aren’t available in every state.

No-fault divorce vs. fault divorce: How they compare

Here’s a side-by-side look at no-fault and fault divorces.

No-fault divorceFault divorce
How it worksThe filing spouse states that the marriage is irretrievably broken.The filing spouse states that the other spouse is the cause of the divorce, according to the state’s grounds for divorce.
Who it’s best forFor couples whose personality conflicts make married life impossible.For couples where one spouse is accused of marital misconduct.
Grounds for divorce
  • Irreconcilable differences
  • Living apart
  • Abandonment
  • Adultery
  • Cruelty
  • Incarceration
  • Inability to have sexual intercourse
  • Insanity
Legal separation necessaryYes, in some statesNo
Possible to stop the divorceNoYes
Difficulty levelEasyHard
State residency requirementsYesYes
CostLess expensiveMore expensive
Available through online DIY serviceYesYes
Learn moreLearn more

No-fault divorce: How it works

To file for a no-fault divorce, only one spouse needs to want to end the marriage. Instead of assigning blame, the grounds for divorce is solely based on the fact that you and your spouse no longer get along. Some states require that you live apart for a specific amount of time before you can file for no-fault divorce, though it varies.

Once you meet the state residency and separation requirements, you can proceed with the divorce — regardless of whether your spouse is OK with it. Since there’s no need to prove fault, this type of divorce generally costs less because you may not need a court trial. And if it’s uncontested, you may even be able to complete the entire process online.

Grounds for no-fault divorce

Though the grounds for a no-fault divorce vary by state, the two most common legal reasons include:

  • Irreconcilable differences. One spouse states that the divorcing couple just can’t get along. A few other names that some states may use are “marriage is irretrievably broken,” “incompatibility” or “irremediable breakdown of the marriage.”
  • Living apart. You and your partner have lived separately for a specific period of time, which varies by state.

Pros and cons of no-fault divorce

No-fault divorces have advantages and limitations.

  • Cheaper and faster than having a fault divorce that must prove guilt
  • Eliminates blame
  • Possible to avoid a public court trial
  • Long separation period required in some states
  • The innocent spouse won’t benefit more financially

No-fault divorce checklist

Although states have different requirements, here’s a general idea of what you need to be eligible to file for no-fault divorce:

  • Meet residency requirements. Most states require that you’re a resident for a specific amount of time to be eligible for a no-fault divorce.
  • Complete separation period. Some states have a mandated separation period before you can file. For instance, Texas requires spouses to live apart for three years before they can file for a no-fault divorce.
  • Swear you can’t get along for a specific amount of time. Some states require that the irretrievable breakdown of the marriage has occurred for a minimum stint. For example, in New York, at least one spouse must state under oath that the relationship has been broken for at least six months.
  • Reach a settlement agreement. You need a divorce settlement agreement covering all the main issues, including division of assets and debts, child support, visitation and alimony. If your spouse agrees to the terms, you should have a smooth, no-fault uncontested divorce. If your spouse contests the divorce, you might consider mediation or arbitration instead of fighting it out in court.

Fault divorce: How it works

In a fault divorce, you file a petition alleging that your spouse is responsible for the breakdown of your marriage. For example, you may cite adultery or cruelty of emotional or physical pain as the grounds for divorce.

Before you can file, you need to fulfill the state’s residency requirement, though you don’t need to complete a separation period. Instead, you need to prove to a judge that your spouse is to blame for your divorce.

Keep in mind that your spouse also has the right to make a defense and stop the divorce if they can show that they aren’t at fault. And your case will likely have to go through the court system if it’s contested.

In some states, fault divorces may award the innocent spouse a greater portion of the shared property or assets and a larger alimony payment. But fault divorces are also generally more expensive and time-consuming than no-fault divorces because they involve presenting evidence and witnesses.

What is comparative rectitude?

Comparative rectitude is a principle that kicks in if both spouses have grounds for a fault divorce. A divorce based upon comparative rectitude grants the divorce to the spouse that is more innocent or least at fault.

6 possible grounds for fault divorce

While each state has its own legal reasons for granting fault divorce, a few common grounds include:

  • Adultery. Your spouse engages in sexual intercourse with someone else.
  • Abandonment. Your spouse leaves or deserts the family for a period of time.
  • Cruelty. Your spouse inflicts emotional or physical pain.
  • Incarceration. Your spouse is confined to prison for a period of time.
  • Inability to have sexual intercourse. Your spouse is physically unable or refuses to engage in sexual intercourse.
  • Insanity. While insanity is no longer a medical diagnosis, it’s an artifact in the legal system to denote “any mental disorder severe enough that it prevents a person from having legal capacity and excuses the person from criminal or civil responsibility,” according to Black’s Law Dictionary. To use this ground for divorce, your spouse’s mental condition typically needs to be deemed incurable and present for a minimum number of years.

Check your state’s court system website for the correct terminology of grounds for fault divorce before filing.

Pros and cons of fault divorce

Weigh the costs and benefits of a fault divorce before deciding whether it’s for you.

  • No separation period
  • Innocent spouse may receive more financial benefits
  • More expensive and time-consuming than no-fault divorce
  • Must prove guilt
  • Typically can’t complete the process online
  • May need a public court trial

What states only offer no-fault divorce?

Some states only offer the option of filing a no-fault divorce, meaning you can’t assert that the other spouse is responsible for the breakdown of your marriage. These include:

  • California
  • Colorado
  • District of Columbia
  • Florida
  • Hawaii
  • Indiana
  • Iowa
  • Kansas
  • Kentucky
  • Michigan
  • Minnesota
  • Missouri
  • Montana
  • Nebraska
  • Nevada
  • Oregon
  • Washington
  • Wisconsin

Compare online no-fault divorce services

If you have an uncontested no-fault divorce, check if you can begin the process online using one of the following divorce services:

Name Product Cost Includes filing papers with court? File without spouse Legal assistance available Customer service
3 Step Divorce
$299 - $336
No - you must file and pay court fees
Yes
No
Phone, Email
File within one business day of your start date with 3StepDivorce and qualify for a $50 cash rebate. Payment plans available.
LegalZoom online divorce
$499
No - you must file and pay court fees
Yes
Yes
Phone, Email, Live chat
File for an uncontested divorce online or find legal resources to help guide you through the divorce process.
OnlineDivorce.com
$139
No - you must file and pay court fees
Yes
No
Phone, Email
Ready-to-file divorce forms for one flat fee. Step-by-step directions to help simplify uncontested divorces.
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Bottom line

Every state has some version of no-fault divorce, which is typically cheaper and faster to complete since no one is pointing the finger at who’s to blame. It’s also easier to complete your divorce online and keep it out of the court system when you go the no-fault route. But if you’ve been wronged in your marriage and want your spouse to pay in terms of higher alimony or child support payments, then you might want to opt for a fault divorce if it’s available where you live.

Read our guide to getting divorced to learn more about how it works and compare legal services.

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