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What is a Fault Based Divorce?

 

Even though both partners in a marriage have made vows to love and honor one another until death parts them, circumstances may arise that cause them to want or need a divorce through the assistance of a divorce attorney.  A divorce is a court-ordered decree that dissolves the marriage.  For that reason, a divorce attorney will often call it “dissolution of marriage.” 

As painful and expensive as dissolving a marriage can be, the vast majority of them are solved without going to court through a divorce attorney.  Some estimate as many as 95 percent are solved by other means, such as negotiation, mediation, or settlement, often with the help of a divorce attorney.  In addition to mediation, the parties may also choose to pursue a fault-based divorce or a no-fault divorce through their divorce attorney. 

Fault-Based Divorce vs. No-Fault Divorce
In the past, most people chose getting a fault-based divorce, whereby one partner blamed the other for the breakup through the filing of their divorce attorney.  Today, no-fault divorce is more popular, because neither party has to be proven at-fault by judges or a divorce attorney.  All states currently support no-fault divorces, while only 32 states allow getting a fault-based divorce.  However, there are reasons why a couple would be interested in getting a fault-based divorce with the help of their divorce attorney.  The two primary reasons for getting a fault-based divorce include not wanting to wait through the separation period required by a no-fault divorce, and one party wanting to be awarded a greater part of the settlement through their divorce attorney.  In either case, it may save a great deal of time and red tape to employ a divorce attorney to help with the process of getting a fault-based divorce.  Another reason that is rarely declared in court but often the underlying cause of getting a fault-based divorce is an emotional need to have the other partner blamed for the failure of the marriage.  In addition, there are some cases where both parties are at-fault.  When that occurs, a judge will grant the divorce to the partner who is lease at fault.  This is called “comparative rectitude,” and you can have a great deal of legal help to have the decision go in your favor with the help of a divorce attorney. 

Getting a Fault-Based Divorce
Getting a fault-based divorce begins when one spouse initially charges one of several possible grounds, usually via their divorce attorney’s filing:

  • Adultery
  • Desertion (for a specific period of time)
  • Confinement in prison (for a set number of years)
  • Inability to physically engage in intercourse (which was not revealed before the marriage)
  • Attempted murder
  • Addiction
  • Cruelty, either physical or mental (the most common charge)

In most cases, a divorce attorney of each the partners will negotiate a settlement and the divorce will be settled out of court.  In some cases, the details are more complex and a divorce attorney mediator is called in.  It is less time consuming and expensive if the mediator can help the spouses and their divorce attorneys reach a settlement.  However, if that fails, the parties and their divorce attorneys must appear in court.  At that point, the legal fees and additional expenses rise, and the results can be more difficult for everyone.

In addition, getting a fault-based divorce can be contested.  There are several reasons that are commonly given by a divorce attorney when contesting getting a fault-based divorce, including:
 

  • Condonation, by which it is charged that the partner at one time condoned the actions of the other.  In the case of adultery, it would be charged that the offended party once would be charged that the offended party onc condoned the adultery of the other.
  • Connivance, by which one party lured the other into the offending behavior, or set the stage to make it practically unavoidable
  • Provocation, by which one party intentionally provoked the other into the offending behavior. 
  • Collusion, by which both parties work together to create grounds for one party to find fault with the other.  This usually occurs when both parties do not want to wait the proscribed period for a no-fault divorce in their state.

These reasons are rarely used, and when they are, they usually do not work.  In most cases, neither party wants to expend the time and money to gather witnesses nor have the offenses aired publicly in court.  In addition, a judge will rarely refuse to grant a getting a fault-based divorce.  Public policy has changed, and it is now unpopular to force someone to stay married when he or she has strong reasons to want a divorce.

Difficulties of Getting a Fault-Based Divorce
All but three states require that a partner be a resident of the state in which they seek a divorce.  The residency requirement varies by state, but it can often be between six months and a year.  The court requires proof, so that a person cannot file for getting a fault-based divorce in a state just because it has more lenient divorce laws.  The defendant getting a fault-based divorce does not have to live in the filing state, but if the divorce goes to trial, he or she must appear in court whenever required.  That is a good reason for hiring a good divorce attorney to negotiate the settlement out of court. 

Getting a fault-based divorce is much easier if it is filed in your home state.  If you know that your spouse is going to file out of state, it may be easier to file first in your home state.  However, if your spouse does file first in another state, and you accept the divorce decree when it is delivered to you, you become liable to abide by the decree of the court, in relation to custody, child-support, alimony, division of property, and more.  The only way to change those requirements is to consult a good divorce attorney early in the proceedings and negotiate or fight for a settlement.

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