No-fault divorce is the most common modern type of marriage dissolution. Traditional fault divorce required a person filing for divorce to prove some wrongdoing by their spouse that breached the marriage contract – cruelty, adultery, and desertion are common examples of grounds for a fault divorce. In contrast, no-fault divorces do not require any showing of wrongdoing. Rather, the filing spouse simply claims as grounds for the divorce that the couple cannot get along and the marriage has factually broken down. Depending on the state, the terminology used may be incompatibility, irreconcilable differences between the spouses, or irreparable breakdown of the marriage. All states now recognize no-fault divorce, and many have adopted pure no-fault divorce in which fault divorces are no longer recognized.
In states that offer both types of divorce, there can be strategic benefits to pursuing one type of divorce over another. In a no-fault divorce, the process is initiated unilaterally by the filing spouse and the other spouse cannot object. But depending on the state, no-fault divorces may require that the couple has lived separately for at least a minimum time period before filing. In contrast, fault divorces can be filed immediately upon a partner’s wrongdoing, however the filing spouse must have evidence available to prove their assertions of fault. The spouse who allegedly committed the wrongdoing can challenge the grounds for divorce and assert defenses that can stop the divorce. No-fault divorce is therefore more private because the couple does not have to share the intimate details of their marriage in court. But because fault divorces require a breach of the marriage contract, they often result in greater shares of the marital property or more alimony for the filing spouse than results from filing a no-fault divorce.
No-fault divorce grew quickly in popularity among the states from the 1970s onward. The no-fault movement gained steam as an alternative to the tactics of perjury and forum-shopping employed by some unhappy couples to bypass their state’s fault divorce laws. However, critics of the pure no-fault movement – in which fault divorce is not an available option – have blamed no-fault divorce for many social ills, including rising divorce rates, increased bad marital behavior and domestic violence, and the destruction of the concept of mutual interdependence that was traditionally central to marriage.
[Last updated in September of 2020 by the Wex Definitions Team]