In every state, some type of “no-fault” divorce is available. “No fault” means that the divorce isn’t based on someone being at fault for ending the marriage. The spouse suing for divorce does not need to accuse the other of wrongdoing. Instead, the person requesting the divorce must state one of two things:
• that the couple no longer gets along and want to go their separate ways (in legalese, the couple is incompatible, has irreconcilable differences, or there’s been an irretrievable or irremediable breakdown of the marriage), or
• that the couple has already been living apart by mutual consent for a certain period of time.
Does this mean that if you leave your spouse and live with someone else, this can’t be used against you in the divorce? Not necessarily. Although every state has no-fault divorce, over 30 states have also kept their traditional fault-based divorces (based on adultery, mental cruelty, desertion, and the like) as well. This means that in many states a spouse can, at least in some circumstances, request a fault-based divorce and show that you mistreated him or her. This may have serious effects on how marital property is divided after divorce and whether you receive alimony (and how much). Also, no matter what type of divorce is obtained, “fault” may be raised in a property or support negotiation or in a child custody or visitation hearing.
Grounds for Divorce
The State-by-State Grounds for Divorce chart included here provides details on the legal reasons a spouse must give to request a divorce in each state. Here’s how to read the notations on this chart.
Traditionally, in order for a couple to obtain a divorce, one spouse had to prove that the other spouse was legally at fault. The “innocent” spouse was then granted the divorce from the “guilty” spouse. The “guilty” spouse would usually have to pay a substantial amount of alimony (or receive less than he or she would otherwise be entitled to) or give up marital property to which he or she was otherwise entitled.
Today about three-fifths of the states still allow a spouse to allege fault in obtaining a divorce, on grounds such as:
• adultery—sexual relations by a married person with someone other than the person’s spouse
• mental cruelty—any act of inflicting unnecessary emotional pain, and
• desertion—voluntary abandonment of someone by a spouse without the abandoned spouse’s consent.
In some states, alimony and property division are not linked to fault. For example, although a fault divorce is still available in Illinois, alimony is awarded and property divided regardless of fault. Conversely, although fault divorces have been eliminated in Florida, adultery can be a factor in determining the award of alimony.
Any divorce where the spouse suing for divorce does not have to accuse the other of wrongdoing is a no-fault divorce. You can simply claim incompatibility, irreconcilable differences, or irretrievable or irremediable breakdown of the marriage, rather than blaming your spouse
For no-fault divorces based on the fact that the spouses have already separated, many states specify the time that you must be apart (the “Length of Separation” column on the chart). This may be as short as six months (Hawaii) or as long as five years (Idaho). If the separation is not by mutual consent or if there are children involved, the period of time may be different from what is shown on the Grounds for Divorce chart.
What Does All This “Fault” and “No-Fault” Language Really Mean?
If your state still has fault divorce, and your spouse is angry because you’ve moved in with your current love interest, your spouse may drag your living situation (which is technically adultery) into court. Also, even if your state has no-fault divorces, this doesn’t mean that living with someone new won’t affect your divorce in terms of the division of marital property and payment of alimony.
Covenant Marriage and Divorce
In a few states, including Arizona, Arkansas, and Louisiana, couples can enter into a “Covenant Marriage,” which is basically designed to make divorcing more difficult. Before seeking a divorce, couples must seek marital counseling, and the spouse seeking the divorce must prove fault—by proving either that the parties have been separated for a specified period of time, or that the other spouse committed adultery, committed a felony, or physically or sexually abused a child of one of the parties..
Effect of Fault on Division of Marital Property
In most states, property acquired during marriage (except for gifts and inheritance) is divided more or less equally between husband and wife at divorce.
In some states with fault divorces, living with someone new (adultery) may result in your being awarded less of the marital property (real estate, furniture, cars, stocks, etc.) than you would have otherwise received. And even in a few states that have no-fault divorces, adultery can still be considered when it comes to dividing your marital property, with a judge empowered to award more to the spouse who is not living with someone. On the other hand, some states allow divorces based on one spouse’s adultery, but adultery cannot be used to keep that spouse from getting his or her share of the marital property.
Keep in mind that regardless of your state’s laws, you and your spouse can divide your property however you want. Even in states where one person’s fault can have a bearing on division of property or alimony, this need not make a difference to you and your spouse. Many people get civilized divorces in states where fault-based divorces are possible. They make custody, support, and property decisions in a spirit of compromise, not based on who hurt whom. If you and your spouse are separating amicably, you needn’t worry about the effect of living with someone else.
Effect of Fault on Alimony
Alimony (sometimes called spousal support or maintenance) is the money paid by one ex-spouse to the other for support under the terms of a court order or settlement agreement following a divorce. Alimony is not the same thing as child support (discussed in the Child Support for Children From a Prior Marriage article on this site).
Alimony was necessary in most divorces a generation or two ago—when men typically went off to work, leaving mother and children at home. Today, with so many women working, alimony is granted less frequently (or for shorter periods) and isn’t even requested in some cases. Typically, if no alimony is awarded at the time of divorce, a spouse can’t seek alimony at a later time.
When couples have been married for many years, alimony is still commonly granted, especially if the woman has had primary responsibility for raising the children and has been out of the workplace or working only part-time. Alimony may also be granted in a situation in which both spouses work, but one enjoys a significantly higher income than the other.
Living with an unmarried partner may affect your right to receive alimony in some states. In many states, a spouse who is considered guilty of adultery may either be barred from receiving alimony altogether or receive less than a full share of alimony. Ironically, some of these states have done away with adultery as a basis for divorce. Also, this is not a universal rule. Some states with fault divorces don’t allow adultery to influence property division. Some states do not reduce or terminate alimony on the basis of adultery. But almost all states may reduce alimony payments if the recipient cohabits—especially if this reduces that person’s need for support. Finally, several states are silent on the issue of fault consideration and alimony.
When to See a Divorce Lawyer
If your divorce is at all complicated or contested, you’ll want to consult an experienced family law attorney, especially if children are involved and there are a lot of assets at stake. For a list of local attorneys, see Nolo’s Lawyer Directory.
More Legal Information on Divorce
For more articles on divorce and family law, see the Divorce, Child Support and Child Custody section of the Nolo website.