Fault or No-Fault Divorce

Family Law Attorney

All 50 states in the U.S. offer no-fault divorce. This means that a couple can end their marriage without having to cite a reason as to why they want to divorce. However, in many cases, it may still be in the best interest of a spouse to file a fault or evidence-based divorce.

Many people have legitimate personal or religious reasons for a declaration of misconduct in a marriage. In other situations, although fault is not a ground for distribution of the marital estate, the offending spouse’s conduct may still be relevant.

Grounds for Divorce

Some of the grounds that a person may cite when they file for divorce includes:

  • Cruelty
  • Incarceration
  • Abandonment
  • Adultery
  • Separation

Most of these grounds are relatively straightforward. The cruel treatment must be of such a nature that it “so endangers the physical or mental well-being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.” Typically, either an incident of physical abuse or a pattern of emotional and/or verbal abuse, will suffice.

Abandonment must last at least one year. In some states, the abandoning spouse must have also expressed intent not to return; “I need some time to think” is as effective as “I’m leaving you for good,” provided that 12 months have elapsed. Typically, most judges require 12 consecutive months or a 12-month period with only a few sporadic interruptions. A divorce attorney will know what the specific laws are in your state.

In a similar vein, a spouse generally must be incarcerated for a felony for at least three years after the marriage, and the couple must have been legally separated for at least a year.

Adultery is a bit more complicated. There may also some common-law defenses to adultery, the most common of which is condonation. If the victim spouse learned of the adultery and agreed to forgive the conduct and resume the marriage, then adultery cannot be the basis for divorce, even if the victim spouses change their minds.

Property Settlement

As stated earlier, fault in the breakup of the marriage is generally not admissible during a property division. But there may be a back door, because dissipation (waste of community assets) is admissible. Consider the following scenarios:

  • Wife cashes in part of her retirement account, which is marital property, to take a vacation with her boyfriend.
  • Husband takes a job in another state and uses funds from his paycheck, which is marital property, to pay for his living expenses.

Although Wife’s adultery and Husband’s abandonment are not admissible, the judge may consider their conduct when dividing the estate.

Contact Divorce Attorney

If you have decided to end your marriage, or your spouse has filed for divorce, you need a seasoned attorney advocating for you. Call today to schedule a free consultation with one of our divorce attorneys, like a family law attorney in Lake Forest, IL, to find out how we can help. Our divorce attorneys have extensive experience in all aspects of family law, including child custody, child support, division of property, and more. Our legal team will use all available resources to get you the best possible outcome based on the circumstances of your case.

Thank you to Hurst, Robin & Kay, LLC. for their insight into family law and divorce.

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