Divorces in most states come in at least one of two versions: fault, in which one spouse must prove the other behaved improperly, and no-fault, in which the spouses need only demonstrate that the marriage cannot be repaired. While most states currently allow no-fault divorce, not all of these states offer fault divorce as well. Some states require a waiting period before finalizing a no-fault divorce.
Types
In a no-fault divorce, the spouses need only demonstrate to the court that the marriage cannot be saved. The legal term often used for this situation is an "irretrievable breakdown of the marriage."
In a fault divorce, however, one spouse must prove that the other did something wrong; that misdeed then becomes the grounds for the divorce. Generally accepted grounds for fault divorce include desertion, cruelty, adultery, committing a felony and/or having been in prison, or an inability of one spouse to perform sexually if the spouse did not disclose this problem before the marriage.
Effects
While both fault and no-fault divorces act to end a valid marriage, the effects on the couple may differ depending on which proceeding is chosen. Fault divorce requires the couple to blame one another for specific misdeeds, which becomes part of the court record. Family members or friends may also overhear the tales of fault from one of the spouses or by attending a court proceeding. No-fault divorce, on the other hand, requires neither spouse to blame the other for specific misdeeds. No-fault divorce is often chosen by couples who have no specific grievances against one another, but who do not wish to remain married.
Waiting Period
Many states require a waiting period before a no-fault divorce may be finalized. For example, Michigan has a six-month waiting period for couples without children and a one-year waiting period for couples with children. Idaho's waiting period is five years, but it can be reduced if both spouses agree to a shorter period. States with both fault and no-fault divorce may not require a waiting period for fault divorce.
Benefits
The benefit of a no-fault divorce is that it allows the marriage to be dissolved without requiring either spouse to be the "bad guy." Often, no-fault divorces can be carried out with a minimum of cost and expense, particularly if the state allows an "uncontested" divorce in which the spouses agree on the terms.
The benefit of a fault divorce is that, if one spouse is clearly to blame, the other may be entitled to greater benefits in the form of spousal maintenance. Also, a fault divorce allows a couple to avoid any state-mandated waiting period for a no-fault divorce.
Considerations
In most states, a spouse cannot object to a no-fault divorce in order to stop the proceedings. The objection itself may be considered an "irreconcilable difference" sufficient to end the marriage.
In a fault divorce, each spouse may be able to prove the other was partially at fault. If this occurs, the court will arrange spousal maintenance or other awards for fault on the basis of "comparative rectitude," which is a legal method of balancing the fault versus the harm caused by each party.
