No Fault Divorce Vs. Fault Divorce FAQ
You can get a no fault divorce in any state, but you may want to understand "fault" grounds for divorce as well.
What's Below:
Do all states allow a "fault" divorce?
What happens in a fault divorce if both spouses are at fault?
What type of divorce is allowed in each state?
Can a spouse successfully prevent a court from granting a divorce?
What is a "no fault" divorce?
"No fault" divorce describes any divorce where the spouse suing for divorce does not have to prove that the other spouse did something wrong. All states allow divorces regardless of who is at "fault."
To get a no fault divorce, one spouse must simply state a reason recognized by the state. In most states, it's enough to declare that the couple cannot get along (this reason goes by such names as "incompatibility," "irreconcilable differences," or "irremediable breakdown of the marriage").
In nearly a dozen states, however, the couple must live apart for a period of months or even years in order to obtain a no fault divorce.
What is a "fault" divorce?
A fault divorce may be granted when the proper grounds for divorce are present and at least one spouse files for it.
The traditional fault grounds are:
- cruelty (inflicting unnecessary emotional or physical pain) -- this is the most frequently used ground for divorce
- adultery
- desertion for a specified length of time
- confinement in prison for a set number of years, and
- physical inability to engage in sexual intercourse, if it was not disclosed before marriage.
Why choose a fault divorce? Some people don't want to wait out the period of separation required by their state's law for a no fault divorce. And in some states, a spouse who proves the other's fault may receive a greater share of the marital property or more alimony.
Do all states allow a "fault" divorce?
No, 15 states offer no fault divorce only. This means that a no fault divorce is the only option even when there has been substantial wrongdoing.
The other states allow a spouse to select either a no fault divorce or a fault divorce. For more information, see What type of divorce is allowed in each state?
What happens in a fault divorce if both spouses are at fault?
When both parties have shown grounds for divorce, the court will grant a divorce to the spouse who is least at fault under a doctrine called "comparative rectitude." Years ago, when both parties were at fault, neither was entitled to a divorce. The absurdity of this result gave rise to the concept of comparative rectitude.
Nowadays, it's usually one spouse who files the divorce papers first; if the other person disagrees with the "fault" accusations, he or she can file an "answer" to the divorce complaint.
What type of divorce is allowed in each state?
The first two columns of this chart sets out whether a state allows a "fault" divorce or a "no fault" divorce. The last two columns of the chart show whether a separation is required before a no fault divorce will be granted, and how long the separation must be.
Grounds for Divorce by State
| State | Fault grounds | No-fault grounds | Separation required? | Length of separation |
| Alabama | • | • | • | 2 years |
| Alaska | • | • | ||
| Arizona | • | |||
| Arkansas | • | • | 18 months | |
| California | • | |||
| Colorado | • | |||
| Connecticut | • | • | •1 | 18 months |
| Delaware | • | • | ||
| District of Columbia | • | 6 months | ||
| Florida | • | |||
| Georgia | • | • | ||
| Hawaii | • | • | 2 years | |
| Idaho | • | • | • | 5 years |
| Illinois | • | •2 | •2 | 2 years |
| Indiana | • | |||
| Iowa | • | |||
| Kansas | • | |||
| Kentucky | • | |||
| Louisiana | • | • | 180 days | |
| Maine | • | • | ||
| Maryland | • | • | 1 year | |
| Massachusetts | • | • | ||
| Michigan | • | |||
| Minnesota | • | • | 180 days | |
| Mississippi | • | • | ||
| Missouri | • | |||
| Montana | • | |||
| Nebraska | • | |||
| Nevada | • | • | 1 year | |
| New Hampshire | • | • | ||
| New Jersey | • | • | 18 months | |
| New Mexico | • | • | ||
| New York | • | • | 1 year | |
| North Carolina | • | • | 1 year | |
| North Dakota | • | • | ||
| Ohio | • | •3 | • | 1 year |
| Oklahoma | • | • | ||
| Oregon | • | |||
| Pennsylvania | • | • | • | 2 years |
| Rhode Island | • | • | • | 3 years |
| South Carolina | • | • | 1 year | |
| South Dakota | • | • | ||
| Tennessee | • | • | •4 | 2 years |
| Texas | • | • | • | 3 years |
| Utah | • | • | • | 3 years |
| Vermont | • | • | 6 months | |
| Virginia | • | •5 | 1 year | |
| Washington | • | |||
| West Virginia | • | • | • | 1 year |
| Wisconsin | • | |||
| Wyoming | • |
2Must allege irretrievable breakdown and separation for no-fault; if both parties consent, two years may be reduced to six months.
3Divorce will be denied if one party contests ground of incompatibility.
4Separation-based divorce allowed only if there are no children.
5May be reduced to six months if there are no children.
Can a spouse successfully prevent a court from granting a divorce?
One spouse cannot stop a no fault divorce. Objecting to the other spouse's request for divorce is itself an irreconcilable difference that would justify the divorce.
A spouse can prevent a fault divorce, however, by convincing the court that he or she is not at fault. In addition, several other defenses to a divorce may be possible:
Condonation. Condonation is someone's approval of another's activities. For example, a wife who does not object to her husband's adultery may be said to condone it. If the wife sues her husband for divorce, claiming he has committed adultery, the husband may argue as a defense that she condoned his behavior.
Connivance. Connivance is the setting up of a situation so that the other person commits a wrongdoing. For example, a wife who invites her husband's lover to the house and then leaves for the weekend may be said to have connived his adultery. If the wife sues her husband for divorce, claiming he has committed adultery, the husband may argue as a defense that she connived -- that is, set up -- his actions.
Provocation. Provocation is the inciting of another to do a certain act. If a spouse suing for divorce claims that the other spouse abandoned her, her spouse might defend the suit on the ground that she provoked the abandonment.
Collusion. If the no fault divorce available in a state requires that the couple separate for a long time and the couple doesn't want to wait, they might pretend that one of them was at fault in order to manufacture a ground for divorce. This is called collusion because they are cooperating in order to mislead the judge. If one spouse decides he no longer wants a divorce (before the divorce is granted), he could raise the collusion as a defense.
In most cases contesting an at fault divorce may lead to considerable expense, without achivieving the desired result of maintaining the marriage. Courts are likely to eventually grant the divorce, because there is a strong public policy argument against forcing people to stay married when they don't wish to be.