States That Allow a Choice Between Fault and No Fault Divorce

In the United States, forty-nine (49) out of fifty (50) states allow a married person to file for no-fault divorce, and the single state that does not, which is New York, requires a one (1) year separation period before no-fault divorce claims can be filed. Under fault no fault divorce systems in most states, a married person is not required to provide of fault to dissolve a marriage. In most cases, an individual can filed under no-fault divorce laws on the grounds of irreconcilable differences, irremediable breakdown of the marriage, or incompatibility.

Eligibility for No Fault Divorces

In order to be eligible for a no fault divorce, each state requires the filing spouse to be a resident of the state where the divorce is filed. Typically, residency status requires maintaining physical residency in a given state for a varied length of time (per state statutes), but commonly includes a period of at least six (6) months. Currently, the states of Washington, South Dakota, and Alaska contain statutory language that requires only residency, with no requirements on length of residency.

Furthermore, the state of New York mandates that a person filing for a no-fault divorce can only do so after being separate from his or her spouse for at least one (1) year; otherwise, the individual filing for divorce must file a fault divorce claim.

Eligibility for Fault Based Divorces

A fault based divorce may be granted in certain states, but will require the filing party to prove required grounds constituting fault as the grounds for the divorce and dissolution of the marriage. Only certain states allow individuals to file at-fault divorces today. Commonly cited grounds for divorce in at-fault divorces include claims of cruelty, adultery, abandonment/desertion, incarceration, or fraud at initiation of marriage. The reasons behind filing an at-fault divorce will vary by each given divorce filing, however, commonly, certain states require statutory separation periods before granting other divorces and the party may not wish to wait. In other cases, the proof of fault may be used in future asset division, child custody arrangements, or alimony agreements. It should be noted that the courts do acknowledge what is known as comparative rectitude, or the fact that both parties may be at fault for the dissolution of the marriage.

Getting Legal Help with Divorce

In essence, each divorce case is unique based on applicable state divorce laws, the wishes of each party involved, and the nature of assets and dependents involved in a given marriage. Consulting with a lawyer is in each parties best interest during any divorce proceeding.

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