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The difference between a fault and a no-fault divorce is only applicable based on where you reside. This article talks about the notable differences and the options that you may have depending on your situation when a divorce is filed.


No-Fault Divorce

In the case of no-fault divorce, the spouse filing for divorce does not have to prove that their partner was at fault in any way. The reason for the separation may be differences between the two that they cannot get over or perhaps just the breakdown of the marriage over time. When a spouse files for a no-fault divorce, the other cannot object. That objection itself is an “irreconcilable difference,” which is ground for the divorce itself. All states recognize the no-fault divorce. However, there are some states that require the spouses to live separately for a specific amount of time before they can file for divorce.


Fault divorce

Fault divorces aren’t nearly as common than a no-fault divorce. In fact, it is so uncommon that most states no longer recognize them. In this case, a spouse can file for a divorce showing that the other person was at fault.

The most common reasons for such divorces include adultery, abandonment over extended periods of time, confinement to prison, having a spouse who is incapable of sexual intercourse, or having an abusive spouse who has inflicted emotional or physical pain. One of the key features of a fault divorce is that the two people are not required to live separately for a certain period of time. Moreover, in a fault divorce, the distribution of marital property goes in favor of the one who is without fault, given that he or she can prove the other person’s fault. These two properties of a fault divorce make it a better option for some people.


Understanding Comparative Rectitude in a Fault Divorce

When both spouses file for a fault divorce, they can try and prove that it was the other person’s fault for the divorce. In such a case, the court will decide who is less at fault, after which the couple will be granted a divorce. This is known as “comparative rectitude.” This policy was brought into play since courts could not grant a divorce if both were at fault. Courts cannot force two people to stay married if they do not want to. Hence, to enable more couple to get divorced if they wish, “comparative rectitude” is implemented.


Defenses in Fault Divorce

In the case of fault divorce, a spouse can present a defense to the fault that is presented in the court. These things are generally not present in a no-fault divorce. In a fault divorce, there are a set of common defenses that can be used. These include the following:

Connivance to adultery is an absolute defense. If an individual file for a fault divorce stating that his or her spouse was committing adultery and the spouse can prove that his or her spouse willingly agreed or created the opportunity to commit adultery, then there really is no argument. This is a typical argument that is presented to counter an accusation of adultery.

Another claim is called condonation, where the spouse knew about the adultery and forgave that, choosing instead to resume normal marital life. Another case is recrimination. This is where both the spouses are equally at fault as both of them were having affairs. In this case, it can be tricky to file for a fault divorce of the grounds of adultery since both of them were committing the same immoral actions.

Provocation is another defense used where one spouse forced the other to act in some way. For instance, an abusive individual forced his or her spouse to leave the marital home, then used abandonment to file for a fault divorce.

Collusion is an agreement between both the spouses to create the grounds for the divorce. This often lessens the severity of the original reasons for the divorce if one of the spouses changes his or her mind. However, proving the fault in court can be quite a time consuming, it requires the presence of witnesses and can be quite costly for both the individuals. Furthermore, courts do not want to force people to stay married and will usually grant the divorce no matter what the situation is. Therefore, most people do not put defensive arguments when the other spouse asks for a divorce, because it causes redundant delays. This is why most people do not even attempt a defense.


Residency requirements for fault and no-fault divorce

State laws dictate the terms of the fault and no-fault divorce. If one of the spouses need to file a divorce in a certain state, there is a certain residency requirement of that state that he or she may have to fulfill. They generally have to live in that state for six months to a year to be able to file a divorce in that state. To file in that state, all you need is to show that you have been living in that state for a while. The court where the divorce has been filed will also be the court for the hearing and all the other matters that follow. So if you have had your divorce filed in a certain state where you are no longer a resident and you want to revise child custody arrangement, then you will have to visit that state’s court again.


The validity of divorce across states

Courts honor the decision made by courts of other states. However, there is a concept of jurisdiction. So if your spouse files for a divorce in Illinois, then all the rules and paperwork and the court orders apply in that state only. That means that even though the verdict of the divorce may be valid, other decisions such as child support and property division may not apply. If you have received papers from a foreign country, then there will be other jurisdictional issues depending on where you have lived and where your children are.


Ask an attorney for help

It does not matter what sort of a divorce you are facing. In a case such as a divorce, it is the best to first seek legal help from an attorney who can help you make the best decisions. An experienced divorce lawyer can provide you with the best legal options that are available to you.

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Judith Goldberg, Attorney & Mediator.   Connect With Judith

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