True vs. Optional No-Fault Divorce States

Written by Christi Hayes and Fact Checked by The Law Dictionary Staff  

No-fault divorce has been an option in all states since New York finally passed its own no-fault divorce law in 2010. While no-fault divorce laws have made it much easier to get divorced and have even helped people in abusive relationships find freedom and security, not all states are identical when it comes to their no-fault divorce options. In fact, states can roughly be divided into two categories: those that are "true" no-fault divorce states and those that are optional no-fault divorce states. The distinction is far from minor and, in fact, the type of state you get divorced in could have a major impact on the final look of your divorce settlement. Here's a look at the differences and similarities between true and optional no-fault divorce states.

What are true no-fault divorce states?

There are 17 states, along with the District of Columbia, that are currently considered to be "true" no-fault divorce states. What this means is that the only option you have if you are considering a divorce in these states is the no-fault option. The conduct of the other spouse has no relevance in the application for a divorce and courts will not take factors like adultery or abandonment into account when deciding whether to grant a divorce. For people who feel as though their spouse has acted improperly during their marriage (such as by having an extramarital affair, for example), the idea that the court does not take that spouse's behavior into account can be frustrating. However, in a no-fault divorce case, the court will treat the divorce as essentially the termination of a contract (which, in fact, is exactly what divorce is). The court is not there to judge the moral worthiness or conduct of either party. While that can feel unfair, it also means that both parties are not held to the whims of whatever a judge or lawmaker considers to be immoral.

However, it is important to keep in mind that while one's conduct will not be an issue when it comes to the actual granting of the divorce, it could be a factor in other issues related to the divorce, particularly child custody and visitation rights. If one spouse has a substance-abuse problem, for example, that problem is not likely to factor into the division of property. However, it will almost certainly factor into a judge's decision about which parent gets physical custody of the children. Furthermore, some no-fault divorce states do allow for divorce on the grounds that a spouse has become mentally incapacitated or institutionalized. In these cases, spouses seeking a divorce will have to provide medical evidence that their partner is mentally incapacitated.

Furthermore, while no-fault divorce is certainly more straightforward than fault divorce, it is important to keep in mind that most states do not simply allow you to apply for and be granted a divorce at the same time. Rather, in most states there is a waiting period between when you actually apply for a divorce and when it is ultimately granted. During this waiting period, which can range from a few months to a couple of years, both spouses must live separately and apart.

What is optional no-fault divorce?

The remaining states all offer no-fault as an option for divorce, but they also retain other divorce options where fault may be involved, including adultery, cruelty, and abandonment. States that offer no-fault as an option can vary considerably in terms of their specific laws. In some states, for example, filing for divorce because of adultery can have a major impact on how property is divided, whereas in other optional no-fault states it will have no impact. One disadvantage of applying for divorce on traditional fault grounds, however, is that the fault will have to be proven with a court, which can cost time and money. Furthermore, by pursuing a fault divorce one may be exposed to the possibility of the other spouse also alleging fault against you. Because whatever is said in court becomes a matter of public record, a fault divorce can quickly lead to embarrassing and private details being shared with the general public. With a no-fault divorce, nothing needs to be proven in terms of the other spouse's conduct. Some states also allow separation for a period of time as the grounds for a divorce. Living separately and apart, while not always a strictly no-fault option, is very close to it.

Which state is which?

The 17 "true" no-fault divorce states are generally considered to be California, Colorado, Florida, Hawaii, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, Oregon, Washington, and Wisconsin, along with the District of Columbia. In many of these states, including in many optional no-fault divorce states, the no-fault option is often referred to as "irreconcilable differences." As stated above, some no-fault states also allow a spouse to divorce the other spouse because the other spouse has been committed to a mental institution.

In the rest of the 33 states, no-fault was usually added as an option for people who wanted to get a divorce. In adding the option, lawmakers kept the fault grounds for divorce that had previously been the only divorce options. As mentioned above, option no-fault divorce states vary substantially in the fault grounds they offer and how those fault grounds impact the overall divorce settlement. In some states that nominally offer fault grounds for divorce, such grounds ultimately have no bearing on how property is divided or spousal support is determined. In such cases, it may make more sense to just file for no-fault divorce even if one has grounds for filing for a fault divorce.

Exploring divorce options

If you are thinking about a divorce then it pays to know your state's laws concerning the termination of marriage. Furthermore, while we use the term "no-fault" here, individual states have their own ways of describing what is essentially no-fault divorce and it is important to know what the specific terminology in your state is. By doing your research beforehand, you will have a better idea of how to proceed with your own divorce or family law issue.

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