No-Fault vs. Fault Divorce: What Are the Differences?

By Kantrowitz, Goldhamer & Graifman, P.C.Divorce attorney

Marriage is a form of a contract, and until very recently, when a spouse wanted to end that contract, state laws required them to state a reason for the contract’s termination. As marriage laws evolved, states adopted “no-fault” divorce laws that substantially simplified the divorce process. New York and New Jersey have their own forms of “no-fault” divorce laws, and both states have also retained aspects of “at fault” divorce proceedings.

The divorce attorneys at Kantrowitz, Goldhamer & Graifman counsel spouses that are seeking a divorce in New York or New Jersey to determine if an at-fault or a no-fault divorce is the better approach.  

What is “At Fault” Divorce?

In an at-fault divorce proceeding, the spouse seeking termination of the marriage will state specific reasons as to why the other spouse is responsible for the marriage becoming untenable.

The allowable grounds for an at fault divorce are defined in state statutes and include matters such as:

  • Adultery
  • Pregnancy as a result of sexual relations with a party outside of the marriage
  • Cruelty or harsh treatment that makes it dangerous for the parties to live together
  • Continuous abandonment for an extended period
  • The other spouse’s imprisonment for more than a certain number of years
  • Living apart for a continuous period following a legal separation
  • Regular and continuous substance abuse

Fault will generally not affect how joint property is divided between the spouses, but it can affect the amount of alimony that one spouse is ordered to pay to the other.

What is a “No-Fault” Divorce?

In a no-fault divorce proceeding, neither spouse is required to prove that the marriage is ending because of something that the other spouse did. In New York, a spouse only needs to claim, under oath, that the marriage has been irretrievably broken for at least six months. New Jersey will grant a no-fault divorce if the spouses have been separate and apart for at least eighteen consecutive months, and there is no reasonable chance that they will be reconciled.

Similarities and Differences Between At Fault and No-Fault Divorces

Both at fault and no-fault divorces will require the divorcing spouses to reach an agreement on issues of child custody and visitation, child support, spousal support, and distribution of marital property. States adopted no-fault divorce laws primarily to give divorcing spouses a better opportunity to focus on these matters, which will continue after the marriage ends, rather than on the reasons for terminating the marriage.

Spouses in an at fault divorce proceeding will inevitably air the private details of their lives in a public forum. The spouse claiming that the other spouse is at fault will need to prove the elements of the claim, for example, with evidence of adultery, physical or emotional cruelty, or abuse. At fault divorces will also consume more time, expense, and physical and emotional energy before they are finalized.  Regardless, a spouse may be willing to endure these challenges to negotiate larger alimony payments.

Do Both Spouses Have to Agree to a No-Fault Divorce?

If only one partner wants to terminate the marriage, that partner can still seek a no-fault divorce by claiming that the partners have irreconcilable differences or that the marriage has been irretrievably broken. The proceedings will be more complicated if the other partner does not cooperate, but the marriage can still be terminated with no-fault proceedings.

If you are considering divorce and you anticipate that your spouse will not cooperate, you should alert your divorce attorney to this possibility during your initial consultation. Your lawyer may recommend counseling or mediation as a preliminary step before you file for divorce, which can save significant amounts of time and money for both you and your partner.

Is Your Case an “At Fault” or “No Fault” Divorce?

States adopted no-fault rules to reduce the stress and lengthy divorce trials that had come to characterize divorce proceedings under at-fault rules.  They retained some version of at-fault divorce proceedings for those situations in which one spouse is significantly more responsible for causing the marriage to fail.

The divorce lawyers at Kantrowitz, Goldhamer & Graifman represent spouses in both at fault and no-fault divorce proceedings in Rockland and Bergen Counties and elsewhere in New York and New Jersey. Please call our offices to schedule a private and confidential conference with one of our attorneys to discuss which divorce proceeding would best suit your situation.

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