How Is A No-fault Divorce Different From Fault Divorce?

Image: Shutterstock

IN THIS ARTICLE

Divorce is a difficult time. While there can be several reasons to split, the most prominent one is incompatibility. You and your spouse might want to split because of irreconcilable differences. It is for such situations that couples consider filing a no-fault divorce.

In this MomJunction post, we tell you about the no-fault divorce, how to file it in the US, and all other related information.

What Is No-fault Divorce?

A no-fault divorce is a type of annulment of marriage where there is no need to prove the wrongdoing or fault of the spouse as a justification to seek divorce. It means, the couple can file for divorce without having to prove in the court that their spouse indulged in marital violations, such as adultery or domestic violence.

The state of California was the first US state to approve no-fault divorce, in the year 1969. Since then, several states have adopted it; now, all the states in the US permit the filing of no-fault divorce.

Fault Divorce vs. No-fault Divorce

Here we explain how a no-fault divorce is different from a fault divorce.

Fault divorce

  • A fault divorce is considered when the plaintiff alleges the spouse of wrongdoing or a fault that has detrimental effects on the marriage.
  • The common faults stated are adultery, abandonment, marital/domestic violence, substance abuse, and conviction of the spouse in a felony.
  • The fault divorce was the only form of dissolution of marriage before the widespread adoption of the no-fault divorce law. Its main attribute is that a plaintiff needs to prove all the allegations stated against their spouse.
  • Justifying the faults and its subsequent ratification by the court would allow for the annulment of marriage.

No-fault divorce

  • There is no need to show faults against the spouse and prove it in the court.
  • It is helpful for married couples who want to separate mostly on the grounds of incompatibility and irreconcilable differences.
  • It may make the legal process simpler, quicker, and also economical for both parties when compared to fighting a legal battle in a fault divorce.

Does Your Spouse Have To Agree For A No-fault Divorce?

There is no need for your spouse to agree for a no-fault divorce. You can file for a no-fault divorce even if your spouse disagrees. However, a few states in the US allow the non-agreeing spouse to challenge the no-fault divorce. The defendant can hire an attorney and fight the case in court on the grounds that there are no irreconcilable differences in the marriage.

The rules, laws, and provisions to challenge a no-fault divorce vary from one state to another. Therefore, consult a lawyer to understand the various nuances of no-fault divorce in your state.

How To File A No-fault Divorce?

The following are the main steps usually involved in the process of filing a no-fault divorce.

1. Identify the personal jurisdiction

If you have been living in a state for a long time, then you are likely to fall under the personal jurisdiction of relevant courts in that state. However, if you are new to a state or have been living there for a short duration, then you will have to determine your personal jurisdiction in your previous state, where you lived for a long time.

Each state has its own residency rules. Some states may require you to submit documents as proof or require you to live for a certain duration to become eligible for filing a no-fault divorce. Check the relevant rules on the state government’s website.

2. Identify relevant courts

Once you know your personal jurisdiction, you need to find the subject jurisdiction, that is, find courts that deal with divorce matters. There can be dedicated divorce courts, while at some places, general district courts also hear divorce pleas. The subject jurisdiction relevant to you will be determined by the state and the city or town you reside in.

3. Check for forms

No-fault divorce forms are usually available online on state government’s websites, through the legal department or legal firms. The form could also provide you instructions on drafting a written petition, which you would later submit in the court.

4. Consider hiring an attorney

After you have been through the first three steps, you could then consider hiring an attorney. You could even hire a divorce lawyer right at the beginning of the process since he/she can determine personal and subject jurisdiction for you. An attorney can also be useful in helping you decide terms of separation and defend you if the defendant (your spouse) raises any objections.

The legal expenses in no-fault divorces are usually lower than that for a fault divorce, especially if there are no challenges posed by your spouse in the court. If you do not wish to hire an attorney, then you can represent yourself in the court proceedings.

5. Determine separation preferences

Consider the terms for the separation of money, assets, and custody of children before writing the final petition. Being clear on what you want to retain and what you are okay to forfeit can prepare you better for challenges or objections raised by your spouse. It may also make the legal proceedings go faster.

Couples usually have a discussion and come to an understanding on these before filing for a divorce.

6. File the no-fault divorce petition

Complete the form, written petition, and compile all the obligatory documents to be submitted in the court. Then visit the court and file papers with the clerk in charge. You also pay the no-fault divorce filing fee to the court at this stage.

7. Serve a copy of the petition

Once the divorce is filed in the court, you need to serve a copy of the petition to your spouse. You can serve the papers in person but in the presence of an attorney or an independent third party. The rules for serving papers vary as per your state, so consult your attorney or the state’s legal department.

After serving the papers, the court may give a cooling-off period, which could include a window of opportunity for the defendant to file a counterclaim. The court may allow you to amend your petition if a counterclaim or objection is raised by your spouse.

In the case of disputes over the separation of assets or custody of children, the court may give a chance for an out-of-the court settlement in the presence of a court-approved mediator.

What Are The Pros And Cons Of No-fault Divorce?

The pros and cons of no-fault divorce can be summed into the following points.

Pros:

  • No need to show faults of your spouse as the reason for divorce
  • Can be initiated by either of the partners
  • Can resolve faster if no objections raised by the spouse
  • May incur less legal and attorney expenses

Cons:

  • The spouse can raise objections, which can extend the court proceedings
  • The dispute over assets, money, and child custody may make the case as expensive as fault divorce
  • Maybe misused by a disgruntled spouse

How Long Does A No-fault Divorce Take?

A no-fault divorce case with no objections from the defendant usually takes about two to three months to resolve, although this duration can vary as per state and applicable laws. If the spouse raises objections or the court seeks additional documents, then the case may take longer.

The further court proceedings and timeline of a hearing depend on several factors, including the number of cases in the court, the urgency of separation, and if your spouse has filed any objections.

There are times when a married couple finds no reason to stay together. If the marriage has no other problems and incompatibility is the only concern, then a no-fault divorce could be the solution. Take to an attorney to understand the process and make the separation a smooth affair.