• What is the difference between a fault divorce and a no fault divorce?

    A no fault divorce is one in which one or both spouses file for a divorce claiming no fault of the other spouse in the relationship. Some examples of no fault divorces are if the marriage is not working out, if the marriage cannot be repaired, or if the couple cannot get along any more. If this is the present situation, all the spouse has to do is file for divorce and give any reason that the state honors for a divorce. For the above disputes, one would file under irreconcilable differences or irreparable breakdown of the marriage. In a no fault divorce, a spouse may not object to the other spouse’s petition for a no fault divorce because the court would view that objection primarily as an irreconcilable difference between the parties. All states recognize the no fault divorce but some have different requirements for it. For example, some states may require that the spouses live in separate residences before they decide to permanently file for a divorce and end the marriage.

    A fault divorce is when one spouse files and requests a divorce based on an allegation of the other spouse’s fault. Fault divorces are very rare these days and are only recognized in some states. The most common examples for courts granting fault divorces include adultery, abandonment for a set period of time, spouse prison confinement, if a spouse is physically unable to have sexual intercourse, or if one spouse inflicts physical or emotional injury upon the other spouse. In states that still provide for fault divorces, they do not require the spouses to live separately for a period of time before filing for a divorce. There is no waiting period here. When you are proving a fault divorce, it is more likely if one spouse is deemed at fault for the marriage destruction, the spouse not at fault will be entitled to more monetary and support benefits, which sometimes is why one spouse will push for a fault divorce.

    A comparative rectitude is present when both spouses file for a fault divorce and the court has to determine which of the two spouses are at least fault for the failure of the marriage. This is a public policy rule that was put in place for preventing courts from disapproving the divorce and keeping the couple married against their will.

    If one spouse disagrees with the other spouse’s allegation of false divorce they may object to the claim with a defense. Common defenses to fault divorces include recrimination, collusion, provocation, connivance, and condonation.

    Recrimination is when the spouse that filed for divorce is equally at fault. For example if both sides committed adultery, recrimination would be a justifiable defense to adultery. Since both spouses are at fault for the same incident neither should be solely at fault.

    Collusion can be used if both spouses agreed on the divorce and then one spouse later changes their mind for the reasons for the divorce.

    Provocation is when one spouse is forced by the other spouse to commit a certain act or act in a certain way.

    Connivance refers to the absolute defense to the adultery claim. This is when the complaining spouse agreed to and or even participated in the infidelity. This defense is made for a couple that possibly agreed to a group sex arrangement and then one spouse claims adultery on the other spouse. The one spouse is not likely to be solely at fault for the divorce and or marriage failure.

    Lastly, condonation is when one spouse committed a fault to the marriage and the other spouse knew of the fault and forgave the spouse and continued on with the marriage and then changed his or her mind. This is a defense to a fault divorce claim.

    Although these defenses exist, it may be hard to prove a defense to a fault divorce allegation and they are also very time consuming and costly to complete. A witness is usually required to successfully prove a defense for a fault divorce.

    Because it is the public policy of the court to not keep individuals unhappily married, divorces are consequently likely to be granted to those couples who request them even if their spouse have a valid defense to the alleged fault. Because of this public policy, people are usually discouraged from attempting a defense to a fault divorce allegation due to the length of time and cost they require.
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