Fault versus No-fault Grounds
Key Points
  • No-fault grounds for divorce exist in every state. Both No-fault and fault grounds only exist in only a few. When filing using a fault ground there is a burden of proof responsibility on the filing spouse to show the court that the fault actually took place or exists.
  • No-fault grounds are the most popular as courts rarely make decisions based on favoring one spouse versus the other on marital fault.

California took the lead in 1970 with the first modern no-fault divorce law, and within the decade almost every state followed suit. Today every state offers no-fault as an option. However, 33 states still have fault grounds for divorce. They are Alabama, Alaska, Arkansas, Connecticut, Delaware, Georgia, Idaho, Illinois, Kansas, Louisiana, Maine, Maryland, Massachusetts, Mississippi, Missouri, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia and West Virginia. These states maintained fault divorce and enacted no-fault as yet another option. Seventeen states -- Arizona, California, Colorado, Florida, Hawaii, Indiana, Iowa, Kentucky, Michigan, Minnesota, Montana, Nebraska, Nevada, Oregon, Washington, Wisconsin and Wyoming -- and the District of Columbia abolished fault and permit only no-fault.

In the old days someone who wanted out of a marriage had to prove the other spouse is at fault for causing the marriage to fail. Thus, the idea of fault implied a moral responsibility for failure. Or, even when both of them were equally responsible and each wanted to escape a failed marriage, someone had to "take the fall," that is, be at fault. Marital unhappiness ("irretrievable breakdown" and "irreconcilable differences") did not count.

To this end, fault jurisdictions offer some or all of nine fault grounds, with the first -- adultery -- being the most common because it was seen as most reprehensible. As mentioned, the exact shade of meaning varies with the jurisdiction, as do specific circumstances of the fault. Adultery means sexual contact with someone other than the spouse, and this includes homosexual contact. This sometimes led to a third party being named as a co-respondent or co-defendant in the action, who could elect to join a civil action against the plaintiff’s allegations in the divorce complaint or petition.

Other fault grounds include deviant sexual conduct, a kind of catchall into which some jurisdictions include homosexual adultery; extreme cruelty or cruel and inhuman treatment, which can be "as innocuous and benign as a pattern of conduct resulting in repeated annoyance or just about anything that makes it unreasonable or unhealthy for the parties to continue to cohabit as spouses"; habitual drunkenness, usually for more than one year; mental illness, usually with institutionalization for a year or more; sexual desertion, which means carnal abandonment; drug addiction, which means nonmedical use of narcotics; and nonsupport.

Fault grounds in various jurisdictions may involve durations of episodes and require enumeration and qualification of intensity.

When spouses ended their marriage with fault grounds in the past, punishment for a moral failing identified the villain, particularly when one of them waved the red flag of adultery, an offense deemed worthy of harsh condemnation. Punishment implied guilt, and someone had to pay for it.

Today, even in those states that still have fault grounds, fault is not used as punishment.

A fault divorce does not mean one spouse misbehaved in a way that wrecked the marriage. Each of these grounds are, one observer said, "a term of art, a specific legal definition, not a layman’s definition." The angry women who expects the judge to punish her faithless husband for his infidelity when he leaves her for a younger women faces disappointment. Courts grant divorces; they do not punish divorcing spouses for bad behavior or what is often referred to as marital misconduct.

At one time, the rationale behind fault divorce included the deterrence thought to be in pain and suffering. Moralists believed that this punishment would lessen the incidence of divorce. Most observers today do not feel that this is the case, however. Fault divorce represented a consensus that society had an interest in preventing the dissolution of marriages for any but the very best of reasons. The consensus began to unwind in the 1960s, and bore fruit in 1969 when Governor Ronald Reagan, a divorced man, signed California’s liberal no-fault divorce law.

Courts now view the marriage as an economic unit, and in general courts are more concerned about economic misconduct -- such as the dissipation of marital assets -- than they are about marital misconduct -- such as infidelity.

Many divorcing spouses believe that charging fault means that a judge will punish the other party with eye-popping alimony and/or a division of marital property that impoverishes the offender. For example, if the husband is found at fault of cruelty, a court would traditionally have made him pay a large amount of alimony to punish him for his fault. If, on the other hand, the wife was at fault, by having an affair, then court would punish her by reducing her alimony payment or by giving her less marital property than she would have received otherwise.

Many spouses are disappointed when judges seem indifferent to the reprehensible behavior and outrageous conduct of the other spouse.

The wife who expects a judge to brand her adulterous husband with a scarlet letter will be disappointed, particularly since the financial and emotional costs to herself will undoubtedly be much higher than a less punitive escape from a troubled marriage.

Even if fault is alleged, most states and courts will elect not tie the fault to either the property distribution or spousal support, and indeed, some states even have statutes forbidding any linking of the fault to the property distribution or spousal support.

In the 17 no-fault states, fault is completely irrelevant to all aspects of a divorce. And some states are mixed: fault is not grounds for a divorce, but conduct during the marriage -- including bad behavior -- can be considered in setting support and dividing marital property. While some states (Alabama, Connecticut, the District of Columbia, Florida, Georgia, Idaho, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming) statutorily require the court to consider conduct during the marriage in connection with the award of alimony, the court at the same time is prohibited from considering fault in connection with the distribution of marital or community property. Consideration means what a judge says it means, and most courts in these jurisdictions place little weight on fault for anything.

Prior to the so-called liberalization of divorce, fault was the only way to end a marriage in many jurisdictions. That meant that the plaintiff/petitioner-spouse bore a heavy burden proving the allegation and withstanding the defendant’s strenuous opposition. Proving could turn on the corroborating testimony of witnesses; defending could mean claims that the plaintiff or petitioner procured the adultery, or condoned it, or colluded with the defendant or respondent in the commission of the alleged acts that substantiated the fault.

For sure, the old divorce laws were far more restrictive, "demanding that the parties spend a good deal of their legal efforts toward proving the fault grounds." This means that the parties spent "much, if not more of their financial and emotional resources proving (or defending against) the grounds as they did on the part of the litigation concerning financial or child-related issues." Fault divorces also increased the likelihood of a divorce trial.

However, the proof of fault in the defendant or respondent "was used as a basis to mete out" punishment, "not only the amount of financial support awarded the aggrieved spouse, but also in deciding the quantum of property the court distributed between the parties."

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