What is a no-fault divorce?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 14, 2021

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A no fault divorce occurs when two people want to end their marriage but one party has not clearly wronged the other. When a marriage breaks down simply because the parties no longer wish to be married anymore, a no fault divorce may take place. This has become a common form of divorce and most states recognize no fault grounds as a legitimate reason to end a marriage. Courts may refer to this as “divorce on the basis of irreconcilable differences”, or the process may simply be called a no fault divorce. 

No-Fault Divorce vs. Fault Divorce

In the past, fault has often been required for a divorce. To end a marriage, one party must have done something that would cause the other person to want a divorce. Each state had its own grounds for a fault divorce, but some common examples include:

  • Adultery
  • Incarceration of one spouse in prison
  • Cruelty
  • Desertion
  • One spouses’ inability to have sexual intercourse, unless the other party knew of this before the marriage began

To get a fault divorce, the party filing the papers often needed to provide proof of the grounds. Proof of misconduct that occurred during the marriage was shown through evidence of any of the grounds for divorce, such as testimony from sexual partners of the adultering spouse, incriminating photographs, or other sordid materials. These types of divorces typically caused huge divorce battles in which private marriage issues were made public, and huge amounts of money was spent on private investigators and on lawyers in drawn out courtroom dramas that strained court systems. Since it was often difficult to prove grounds, or both spouses were equally guilty, or even more commonly there weren’t any grounds present but couples still wanted to divorce, it became common place for spouses to engage in collusion and feign grounds in order to obtain a divorce.

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No-Fault Divorce Rules

No fault divorce rules do away with the requirement that there must be a specific reason for the divorce. All states now allow no-fault divorces, recognizing that people sometimes grow apart or have complex personal reasons for no longer wishing to be married. Iin addition, it is widely agreed that reducing conflict in a divorce, regardless of fault, is healthier for both spouses and prevents unnecessary trauma and emotional turmoil for other family members, friends, and especially for children of the marriage. 

The exact requirements for a no fault divorce vary by state, but in many states the couple need only file papers and live apart for a set period of time. In other jurisdictions, if you would like to get a divorce you may also need to go through a process of becoming legally separated before you may file for a no fault divorce. If children were born during the marriage, some states require that parents take a class on the effect of divorce on children. See State Divorce Requirements for specific information

No-Fault Divorce Process

The no-fault divorce process varies depending on multiple factors, such as whether the spouses are able to agree on most issues of property division, child custody, and support. There are also variations in the process between states. However, the divorce process generally starts with one spouse filing a divorce petition in the court where the spouses live. Before preparing and filing the divorce petition, divorce attorneys meet with their clients and, after examining financial records and information, come up with a plan for distribution of the assets between the spouses. Upon receiving the petition for divorce, the other spouse has a certain amount of time to respond to the petition.

During this time, one of the spouses’ attorneys often requests temporary orders that stay in place until the divorce is finalized. The parties may agree to the preliminary orders, or the court may hold a hearing to determine what temporary orders are appropriate. Temporary orders may include orders about which parent has custody of the children, child visitation and support, and spousal support. Temporary orders also commonly address financial issues, and may include restraints on what the spouses may do with marital assets, who has control of money and bank accounts, and who may live in the home. The court may also institute stay away orders in cases where there is a history of domestic violence.

The spouses then usually attempt to come to an agreement regarding property, child custody, and support, sometimes through their lawyers or through one of the other processess used to assist couples in negotiations, such as mediation or collaborative divorce techniques. If the spouses are unable to agree on most issues, cases may end up in trial or being decided by a judge after a hearing where evidence is presented.

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