Fault vs. No-Fault

A spouse may divorce his or her partner in any jurisdiction in the United States, by simply telling the court the marriage is over. No one has to prove the other person caused the breakup. All the jurisdictions now offer no-fault divorce. California broke ground with no-fault in 1970; forty years later, New York became the last passing a no-fault law in 2010.

In seventeen states and the District of Columbia, no-fault divorce – which means the marriage is irretrievably broken – is the only way to end a marriage; each of these jurisdictions, however, customizes the application of no-fault divorce. No-fault only states include Wisconsin, Washington, Oregon, Nevada, Nebraska, Montana, Missouri, Minnesota, Michigan, Kentucky, Kansas, Iowa, Indiana, Hawaii, Florida, Colorado and California. These states offer no traditional grounds, such as adultery, abandonment or cruelty.

The above-mentioned states do not permit divorce because of a partner’s wrongdoing, but some consider other factors and unusual circumstances, and the states describe no-fault in different ways, such as physical separation, irreconcilable differences and incompatibility of temperament. Several states also offer a third option, a hybrid between a fault and no-fault divorce. This third option is living separate and apart for a certain length of time. Separation requirements range from two months in Kentucky to 18 months in Connecticut and two years in Hawaii. Even some pure no-fault states, including Wisconsin, Washington, Nevada, Montana, Kentucky, Hawaii and the District of Columbia, recognize separation-based divorces in addition to their other no-fault options.

In the remaining 33 states, where states added no-fault legislation to their fault laws rather than eliminating the fault grounds entirely, a party can choose no-fault grounds but also may file on traditional fault grounds. These states have specific fault grounds; the most common ones are adultery, deviant sexual conduct, extreme cruelty or cruel and inhuman treatment, habitual drunkenness, mental illness, imprisonment, sexual desertion, drug addiction, and non-support.

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