What Is the Difference Between Fault and No-Fault Divorce?

Divorce has a lot of buzzwords, making the process confusing for even the most prepared couples. What’s worse, each state, even each municipality, may have different rules about filing for divorce and dividing marital assets. Learn about the different types of divorce and the ways you can expect them to affect your situation.

What is a “No-Fault” Divorce, and is it Right for Me?

A no-fault divorce involves a proceeding in which a spouse does not have to prove the other spouse did something wrong. Every state in the country allows no-fault divorces, and California is strictly a no-fault state. In order to file for no-fault divorce, a spouse must cite a reason that is acceptable to the state. In general, something such as irreconcilable differences, incompatibility, or irremediable breakdown of marriage is enough for the court. In non-legal terms, you simply cannot get along anymore.

While all states allow no-fault divorces, each state has different rules for granting them. In some states, you much live apart for a certain amount of time before a judge will grant one.

A no-fault divorce may be right for you if you and your spouse have already come to an agreement about the division of property and assets, or if you’ve opted to pursue a collaborative divorce. In some cases, a fault divorce may be more appropriate.

What is a “Fault” Divorce?

Some states allow fault divorces, but California is not one of them. A judge may grant this type of divorce if one of a set of required grounds applies to the proceeding. Traditionally, these grounds are:

  • Cruelty or inflicting unnecessary pain, either physical or emotional – this is the most oft-cited grounds for fault divorce.
  • Adultery – one spouse may claim infidelity led to the breakdown of the marriage.
  • Desertion for a specified length of time.
  • A physical inability to have sexual intercourse, when the spouse did not reveal that inability before marriage.

Why would a couple choose a fault divorce? For some, it’s easier to file now than wait the time required by state law for a no-fault divorce, and sometimes, one spouse may choose to file a fault divorce to receive alimony or an equitable division of property.

A judge may recognize both parties are at fault for the dissolution of a marriage bond. When this occurs, the court uses a doctrine called “comparative rectitude” to make a decision. In other words, a judge will look at the evidence to determine who is more at fault for the breakdown of the marriage.

Divorce Basics in California

California is strictly a no-fault divorce state, but a judge may use fault to determine the division of property between the two parties. California is also a community property state, meaning that both parties equally own any income or property accrued during the marriage.

In some cases, a judge may consider who is at fault when dividing the marital assets, especially when one member in a marriage committed adultery. Judges are tasked with coming up with an arrangement that is equitable and fair, based on the facts of the case. But judges also have some leeway in determining alimony amounts and duration. For example, a short marriage may grant little alimony for a short time, while a longer union may result in a larger sum for a longer period.

A judge will ultimately award alimony based on a variety of factors and will weight these factors as he or she sees fit. That’s why it’s essential to consult with a family law attorney in a divorce proceeding. While it’s possible to procure a DIY divorce in California, having professional assistance assures the best possible outcome.