What’s the Difference Between a No-Fault and a Fault Divorce?
Posted on December 2nd, 2021
When we get married, we expect to be with our partners forever and to trust them implicitly. Far too often, this doesn’t prove to be true, and our partners can betray us. Relationships can turn abusive, neglectful, or a partner can have affairs. These are all reasons to believe the marriage to be over and file for a divorce. In these situations, it is only possible to file for a fault divorce, where blame is laid upon a partner to the court.
But is filing for divorce and claiming fault really the best option? In Pennsylvania, judges are not legally allowed to divide marital property based on the grounds for separation in a fault divorce. The assets you keep after your divorce will not be affected by whether or not you include fault in your Pennsylvania divorce. Does this mean no-fault divorce may be a better option?
It wasn’t until 1970 that the first state in the United States made no-fault divorce legal, and then in 1980, Pennsylvania followed suit. No-fault allows couples to divorce without having to claim and prove fault in a divorce. If you’re considering filing for divorce, you should learn about what options you have to better serve your future.
History of No-Fault Divorce
Before no-fault divorce was legalized, if anyone wanted a divorce, they had to prove that one or both partners performed some sort of fault. As many know today, this isn’t always the case, and some people do fall out of love or don’t work as partners anymore. This led many couples to commit perjury to gain a divorce for decades.
This led to the creation of no-fault divorce where a couple can agree and admit to irrevocable differences without demeaning a partner publicly or lying under oath.
What Does Filing for a Fault Divorce Mean?
Filing for fault divorce means there has been at least one incident or string of incidents where one partner caused irrevocable harm to the other. When you do this as opposed to filing for no-fault divorce, you can stop your spouse from purposely causing delays in your divorce, or overall stopping them from contesting it all together. This leads to the average fault divorce taking less time to resolve than no-fault divorce unless you have no proof to support a fault claim.
While proving your partner’s fault as a reason for your separation will not lead to you gaining more marital assets, it may entitle you to spousal support. You can already be entitled to spousal support without filing for fault divorce, but doing so and proving fault adds credence to your argument to receive it. This can also lead to the judge increasing your partner’s alimony payments to you.
When Can You File For a Fault Divorce?
Many states have different acts which constitute as a reason that would cause irrevocable harm to a spouse. In Pennsylvania, there are six.
- Adultery – Having a sexual relationship with another person outside of the marriage without permission from the other partner is grounds for a fault divorce. The partner filing for divorce under adultery must prove that the other partner had the opportunity and inclination to commit adultery if there is no proof an affair occurred.
- Bigamy – It is illegal to be married to multiple people at once, and if your spouse knew they were married when they married you, this is grounds for you to file for a fault divorce.
- Cruel and barbarous treatment – If your spouse is physically abusive to the point where it endangers your life and affects your health, this is also grounds for divorce. Proof can be photos of injuries, police reports, or medical records.
- Desertion – When a spouse leaves you for any reason for a year without living with you, you can file for divorce.
- Imprisonment – When a spouse has been convicted for a crime and will be sent to prison for at least 2 years, a fault divorce is an option.
- Indignities – This is a vague reason for fault-based divorce where one spouse makes living intolerable for the other spouse. This can be through means of verbal or emotional abuse, embarrassment or public shaming, draining the couple’s finances, or taking on severe debt.
What Does Filing for a No-Fault Divorce Mean?
No-fault divorce means that you and your partner agree to having irrevocable differences. For this divorce type, both have to agree that the marriage cannot be salvaged. While this can lead to more peaceful court appearances, both partners have to come to an agreement on everything or have a judge intervene after much discussion. This can lead to divorce proceedings lasting longer versus a fault divorce where a judge is expected to intervene.
While this can lead to a more expensive case when compared to some fault divorces, usually because of the investigations by attorneys needed to prove or fight against the reason for the fault. This can also take an emotional toll that isn’t as common in no-fault divorces.
In a fault divorce, it can be common to find yourself being cross-examined for accusations your spouse will make to defend themselves against your claim. For some people, this is understandably not worth what may be gained. Hence, why even people who have reason to file for fault divorce may not always do so.
When Can You File for a No-Fault Divorce?
No-fault divorce doesn’t have a specific reason that a spouse or couple needs to present and prove to have a divorce. If two partners mutually agree and sign affidavits admitting that their marriage is irrevocably broken, they can get a divorce. After signing the affidavit, they only have to wait 90 days so the courts can be sure that they won’t get back together.
There are two other cases where one can file for a no-fault divorce where one spouse may not be able to sign an affidavit but haven’t or are unable to prove they want to contest the divorce.
- Separation – Unlike desertion, in this case, there is no negative or volatile reason. The separation can be and commonly is mutual. When a couple has been living apart, not as husband and wife for a year, they can file for a no-fault divorce.
- Institutionalization – Similar to imprisonment, if a partner is institutionalized for mental treatment for at least 18 months, and will not be released at the end of the 18 months, you can file for a no-fault divorce. This is considered no-fault because the court will not say your partner is at fault for having a mental illness, disability, or condition.
Contact Kalinoski Law Offices to Discuss Your Next Step
Filing for divorce is difficult, and the first step you have to take is deciding what kind of divorce you need to have. Scranton divorce attorney Craig Kalinoski can look at your reasons for divorce, the assets, and spousal support you want to pursue and provide you with a recommendation on what your options look like.
When we represent you, Kalinoski Law Offices is here to best set you up for post-divorce life however we can. Contact us for a free consultation.
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Craig P. Kalinoski is a respected attorney serving clients in Scranton, Pennsylvania. With a focus on Family Law, Criminal Defense, and Civil Rights, he has established himself as a top-rated legal professional. Recognized as a Rising Star and admired by peers, Craig's commitment to excellence sets him apart in the legal field.