Prior to what some have dubbed “the divorce revolution” that began in the 1970s, marriage was treated similarly to a contract. To get a divorce, you had to prove your spouse was at fault in breaking the marital contract. Things such as infidelity, drug addiction, desertion, and impotence qualified as valid reasons. Claiming and proving these faults was often embarrassing and costly. If a married person simply wanted to end the marriage because of unhappiness, they would either be stuck or have to lie. This approach did not take into account the complexity of marital relationships. In most cases, the failure of the marriage is not the fault of one spouse alone.
Today’s laws are quite different with regard to fault. Every state offers spouses a way to become divorced without assigning fault to one spouse. Even so, you still need to provide a reason, or what is known as a ground, for the divorce. The grounds are, however, usually vague and no longer require parties to blame one another for the end of the marriage.
There are two major types of no-fault divorce. The first allows you to simply claim that you and your spouse are incompatible—that you have irreconcilable differences—or that there has been an irremediable breakdown of the marriage. About fifteen states include these types of grounds for divorce. The rest of the states require you to live separate and apart from your spouse for some period of time, ranging from sixty days to two years. The legal definition of separation varies, with some states requiring separate residences and others allowing couples to live in the same house but not share sex. In some states, it is not necessary to have been separated prior to the filing of the divorce, but the divorce is only granted after the required period of separation.
Although no-fault divorce grounds are available in all states, more than half the states also allow you or your spouse to claim fault in your divorce. The grounds available vary, but abandonment and infidelity/adultery are standard. If you live in a state that allows for fault-based divorce and you feel you are able to prove your spouse is at fault for the divorce (based on the fault grounds available in your state), the question becomes: Does it make sense for you to file for divorce using one of the grounds? In about half of the states, a finding of fault could affect alimony, so if you are in a position where you might be liable for such payments, you might consider such a claim in order to avoid paying. A small number of states go so far as to disqualify a spouse from receiving alimony if he or she is found at fault. Fault also is a factor in property division in nearly half the states.
Although bringing fault into your divorce could work to your advantage in some states, you need to review your goals for your divorce, the potential costs of proving fault, and the likely benefits to be gained if you succeed. It is important to remember that most divorces are settled without going to court. However, when you claim fault, or your spouse does, legal fees for both of you are likely to rise dramatically, because rather than solely focusing on negotiating your divorce agreement, your attorneys must also work to prove the fault claim. Your spouse’s fees will also rise as he or she prepares to defend against the claim. The net result is a decrease in your marital property, which in many cases, may exceed the benefit you could win in the fight.
Although the influence of fault on judges has diminished greatly in the past twenty years, the claim is certain to affect your negotiations with your spouse. A claim of fault creates a higher degree of uncertainty. People involved in negotiations where the alternative to an agreement is highly uncertain have an incentive to come to agreement in order to obtain a sense of certainty—it’s sort of a “devil you don’t know is worse than the devil you do know” kind of scenario.
The decision of whether to include a claim of fault in your divorce filing is something to discuss with a lawyer familiar with your state’s laws and the potential outcomes you might achieve if you end up in court. In doing so, remember that that your lawyer may have some bias in the matter if he or she stands to earn large fees from representing you in a more complex divorce. You need to analyze the amount you stand to gain, the likelihood of achieving that outcome, and the cost of the fight before making a decision. You also need to remember that the decision is yours to make. Take advice from your attorney, but be sure you do not give up control of your divorce.
