States Where Fault Divorce Still Exists

When a couple makes the decision to end their marriage, the state where they reside requires that they have grounds for divorce. They can file the divorce petition alleging fault or they may be able to obtain a no-fault divorce. Each state has their own residency requirements and one spouse must be a resident of the state for a specific length of time before they can seek a divorce.

Divorce—Fault vs. No Fault

Outlined below is a breakdown of which states have fault-based or no-fault divorce. Some states require the parties to live separately before a divorce can be finalized if they want to avoid alleging fault against the other party.

Name of State	Fault Based Divorce	No-Fault Divorce	Length of Separation
Alabama	Yes	Yes	Two Years
Alaska	Yes	Yes
Arizona	No	Yes
Arkansas	Yes	No	18 Months
California	No	Yes
Colorado	No	Yes
Connecticut	Yes	Yes	18 Months
Delaware	Yes	Yes
District of Columbia	No	No	6 Months
Florida	No	Yes
Georgia	Yes	Yes
Hawaii	No	Yes	Two ears
Idaho	Yes	Yes	5 Years or more
Illinois	Yes	Yes	Two Years
Indiana	No	Yes
Iowa	No	Yes
Kansas	No	Yes
Kentucky	No	Yes
Louisiana	No	Yes	180 Days
Maine	Yes	Yes
Maryland	Yes	No	One Year
Massachusetts	Yes	Yes
Michigan	No	Yes
Minnesota	No	Yes	180 Days
Mississippi	Yes	Yes
Missouri	No	Yes
Montana	No	Yes
Nebraska	No	Yes
Nevada	No	Yes	One Year
New Hampshire	Yes	Yes
New Jersey	Yes	No	18 Months
New Mexico	Yes	Yes
New York	Yes	No	One Year
North Carolina	Yes	No	One Year
North Dakota	Yes	Yes
Ohio	Yes	Yes	One Year
Oklahoma	Yes	Yes
Oregon	No	Yes
Pennsylvania	Yes	Yes	Two Years
Rhode Island	Yes	Yes	Three Years
South Carolina	Yes	No	One Year
South Dakota	Yes	Yes
Tennessee	Yes	Yes	Two Years
Texas	Yes	Yes	Three Years
Utah	Yes	Yes	Three Years
Vermont	Yes	No	6 Months
Virginia	Yes	No	One Year, 6 months if no children
Washington	No	Yes
West Virginia	Yes	Yes	One Year
Wisconsin	No	Yes	One Year (cannot remarry for 6 months)
Wyoming	No	Yes

Marital Misconduct & Grounds for Divorce

New York is the only state that currently prohibits a no-fault divorce. However, this may change soon if Governor Paterson approves a bill allowing couples to cite “irreconcilable differences” as grounds for divorce. When a couple alleges fault as the reason for the breakdown of their marriage, these grounds often include:

Abandonment—When one spouse has left the marriage for a certain length of time (usually a year or more) and does not intend to return. Constructive abandonment may be cited for the reason if one party refuses to engage in sexual relations with the other.
Adultery—Several states still allow adultery to be alleged, but this is often hard to prove unless a third party is willing to testify that they engaged in sexual relations with the married spouse.
Consummation of the Marriage—When one spouse is unable to consummate the marriage due to impotence or if they refuse to engage in sexual relations with their spouse.
Crime Against Nature—This is a term used to describe unnatural sexual acts, such as bestiality, sodomy, homosexual acts and necrophilia.
Cruel and Inhuman Treatment—This can be emotional, mental and physical abuse or proof of domestic violence incidents against the spouse or another family member or child.
Drug or Alcohol Addiction—If either spouse has become addicted to either drugs or alcohol after the marriage took place.
Felony Offense—When one spouse has been convicted of a felony crime.
Imprisonment—If one spouse has been in prison for a certain period of time.
Insanity—This requires that the mental illness has continued for a certain number of years or the spouse is declared incurable.

Legal Advice From a Divorce Attorney

Going through a divorce for any couple can be a long and painful process. The laws in each state can be complex and require legal expertise. Some states now allow the spouses to engage in mediated or collaborative divorces to make the process less acrimonious, thus sparing further harm to the children. If you are contemplating a divorce, it’s best to get advice from a family law attorney to find out what the laws in your state require.

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