Types of Divorce: Fault vs. No Fault Lawyers

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 What Is a "No-Fault" Divorce?

The fundamental feature of a “no-fault” divorce is that the spouse filing for divorce need not verify any wrongdoing or “fault” on behalf of either party to get a divorce. Some states require the couple to assert they no longer can get along. Other states ask for more, such as directing the couple to live apart for some time, ranging from months to years, before they can file for a no-fault divorce.

The grounds for “no-fault” divorce are:

  • Incompatibility
  • Irreconcilable Differences
  • Irremediable Breakdown of the Marriage

Although there are three separate grounds, they all stand for the same thing; the parties can’t get along. As a result, states that acknowledge no-fault divorce often pick one ground and use it for most no-fault divorces.

What Is a “Fault” Divorce?

A “fault” divorce is given when the filing party cites a reason why their spouse is at fault for the failure of their marriage. The traditional grounds for a fault divorce are:

  • Cruelty
  • Adultery
  • Desertion for a specific length of time
  • Confinement in prison for several years
  • Inability to consummate the marriage

A benefit of filing for a fault divorce is that it may eliminate the mandatory period of separation that is required for a no-fault divorce. Further, some states may grant a more significant share of marital property or alimony to a party who establishes the other’s fault.

Do All States Grant “Fault” Divorces?

No. Several states, including California and Florida, do not grant fault divorces. Rather, they only allow for no-fault divorces, even in cases where a spouse has violated the traditional grounds for a fault divorce. The other states enable a spouse to choose to file for a fault or no-fault divorce.

What If the Spouses Dispute Who Is at Fault?

It is common for spouses to blame the other for ending the marriage. Spouses can squabble over:

  • Whether there is fault
  • Who’s at fault
  • What the fault is

The judge resolves each of these problems. The judge can determine whether one of the spouses is at fault, both spouses are at fault, or none are at fault. Correspondingly, judges can decide if the marriage ended because of adultery or separation.

The judge’s decision will significantly alter the outcome of the divorce. Marital property or alimony are split differently if the marriage ended because of adultery than if the marriage ended because of “irreconcilable differences.”

In addition, there is an emotional factor involved. If a judge finds fault, one spouse will walk away feeling like they “won” the divorce. In contrast, the other spouse may feel remorseful, persecuted, mad, or any other feeling involved with being blamed for ending a relationship.

Property Division After a Divorce

It is common for the people filing for divorce to work out an agreement regarding the division of their property and their debts on their own. In cases where the parties cannot reach an agreement, the court must step in and apply the state’s laws to resolve the conflict.

The state laws overseeing the division of marital property during a divorce are classified into two categories:

  • Community property states, and
  • Equitable distribution property states.

In these states, all of the property of married people is categorized as either community property, which is owned equally by both spouses, or as separate property of one of the spouses. When a couple divorces, community property is generally split equally between the spouses while each spouse keeps their separate property.

In all other states, the assets and earnings accumulated during a marriage are split equitably, called equitable distribution of property. The court will consider numerous factors and examine each spouse’s financial situation following the divorce to determine how to divide the property fairly.

The factors examined may include the duration of the marriage and the earning potential of each spouse.

Exceptions to the Equitable Distribution of Property During Divorce

It is essential to mention that although the assets and earnings which are accumulated during a marriage are split equally in a divorce, there are exceptions that are provided by statutes, including:

  • Misappropriation: This happens when one spouse obtains assets or earnings unjustly before the divorce. This spouse has wronged and will not receive the misappropriated asset or earning;
  • Debts: If either of the parties has debt, this debt will be deemed the spouse’s obligation. The other party will not be expected to pay half of that debt upon their divorce;
  • Tort liability: If there is a civil lawsuit against one party which cannot benefit the couple as a whole, then, upon their divorce, the potential monetary obligation arising from the suit will be the duty of the party who issued; and
  • Recovery from a personal injury lawsuit: If either party is awarded a monetary amount due to a personal injury lawsuit, this amount stays with the injured party and will not be separated upon the divorce.

What Type of Property Is Commonly Referred to as Separate Property?

Classifications of property in a divorce context may hinge on state laws. Nevertheless, generally speaking, the following are the most standard forms of separate property:

  • Inheritances and gifts (such as property acquired through a will);
  • Heirlooms (usually priceless items kept in the family, such as jewelry);
  • Chattels (property) used entirely or predominantly for business purposes;
  • Property acquired under a trust;
  • The property the partners declare to be separate under an agreement;
  • Property received before the marriage began; and
  • Property obtained with the proceeds of separate property and not intended for the use or benefit of both partners.

Maybe the most clearly defined separate property is those items that are declared separate property through an agreement between the parties. Therefore, if there are any specific property items or assets that the parties don’t want to be classified as shared property, they should form an agreement and list the property as separate property. This is typically done through a legal document such as a prenuptial agreement.

Nevertheless, it is essential to remember that you must also treat the property as separate property. Suppose you declare a home you owned before marriage as separate property, and you rent it out and receive income that you declare to be separate income. In that case, you cannot blend that income with community property.

Are There Any Other Types of Divorce?

How the divorce is classified may also depend on whether the divorce resulted from fault or no-fault.

  • Contested Divorce: A contested divorce is a type of divorce where either spouse cannot reach an agreement. This is the most difficult type of divorce because each spouse will need to go to hearings, settlement negotiations, and potentially even a trial to reach a reasonable resolution.
  • Uncontested Divorce: By contrast, an uncontested divorce happens when the spouses collaborate and work together to reach an agreement. It is unlikely either party will need to see the inside of a courtroom.

Do I Need a Divorce Attorney?

Divorce can be a complex and long process. Also, it is often an emotional and stressful time. If you face divorce, you should contact a lawyer to handle your case. An experienced divorce lawyer will be able to explain what divorce options are available in your state, guide you through the process, and ensure that your rights are protected in the settlement.


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