What is an at fault divorce and what “reasons” might it include?

An at-fault divorce is one where the party seeking the dissolution of marriage must state specific reasons why the marriage is ending by placing fault on the other spouse for the end of the marriage.

While each state has its own “grounds” for an at-fault divorce, the following are some typical examples: adultery, pregnancy due to adultery, physical abuse, abandonment, imprisonment, living apart following legal separation, bigamy, sterility, neglect, and substance abuse.

In an at-fault divorce, the judge is essentially making a finding that one of the reasons for the divorce is true and therefore that spouse is at fault for the end of the marriage. As a result, an at-fault divorce proceeding can become very public because the reason for the dissolution will have to be proven to the court through evidence.  

Every state has now adopted some version of a no-fault divorce. However, only seventeen states have only no-fault grounds for a divorce rather than a combination of both at-fault and no-fault. Those seventeen states include California, Colorado, Florida, Hawaii, Iowa, Kansas, Kentucky, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, Oregon, Washington, Wisconsin, and Indiana. The remainder still respect at-fault grounds for a divorce, meaning you can choose whether to pursue an at-fault or no-fault divorce when filing the dissolution of marriage.

Reasons (“grounds”) for an at-fault divorce

The legally enforceable grounds for an at-fault divorce can differ in each state.

For example, in Arkansas, the grounds for an at-fault divorce include impotence, conviction of a felony, habitual drunkenness for one year, endangerment of life with cruel and barbarous treatment, general indignities, adultery, three consecutive years of incurable insanity, and willful failure to provide the spouse with legally obligated support. Each state outlines the grounds for the at-fault divorce in the code.  See Arkansas Code, section 9-12-301.In Utah, the grounds include impotency, adultery, willful desertion for more than one year, habitual drunkenness, conviction of a felony, cruel treatment to the extent it causes bodily injury or great mental distress, willful neglect to provide necessities, and incurable insanity.

Texas, on the other hand, only has four grounds for at-fault divorce. Those are abandonment, felony conviction, adultery, and cruelty.

Keeping in mind that every state is different, we can take a closer look at some common grounds that may be considered.

Is withholding sex grounds for divorce?

Some people ask whether a sexless marriage is grounds for a divorce in an at-fault state. The answer is “yes,” but the term is not called “sexless marriage” but rather described under the category of constructive abandonment or desertion.

In North Dakota, for example, desertion or abandonment in the statute is defined as “persistent refusal to have reasonable matrimonial intercourse as husband and wife when health or physical condition does not make such refusal reasonably necessary, or the refusal of either party to dwell in the same house with the other party when there is no just cause for such refusal, is desertion. In 2007, a New York court held that a wife had abandoned her husband by refusing to have sex for more than one year.

Can you divorce a spouse with a mental illness?

Mental illness is grounds for divorce in most states. If you are filing on grounds of mental illness, you must prove that your spouse has an incurable mental illness that results in an intolerable marriage. You will need to present a credible doctor as evidence to the court of mental illness.  

What are the religious or biblical grounds for a divorce?

The reasons listed above are legal grounds for an at-fault divorce, meaning the court will legally accept the divorce and dissolve the marriage once a ground is proven to the court through evidence.

However, some religious faiths, such as Christianity or Catholicism, do not accept the dissolution of marriage even when the court does. The Bible allows for four grounds for divorce.  One, sexual immorality. (Matthew 5:32; 19:9.) Two, abandonment by an unbeliever (1 Corinthians 7:15.) Three, adultery (Matthew 19:8.); which is also listed as a legal reason for a divorce. Four, death (Romans 7:2.).

Pros and cons of filing an at-fault divorce

Reasons to file an at-fault divorce

Since all states now have fault and no-fault based grounds, you may ask yourself why you should file an at-fault divorce. There can be benefits to seeking an at-fault divorce. For example, the allegations that you allege in the petition for fault can affect the division of assets, alimony, visitation, and other aspects of the divorce.   

Reasons to not file an at-fault divorce

There are also some disadvantages to filing an at-fault divorce. Specifically, your spouse, whom you are trying to dissolve a marriage from in the least stressful and most cost-effective forum will now become angry, distant, stubborn, and defensive while feeling attacked. As such, that person may not want to agree to anything or give you anything that you are asking for. An at-fault divorce is also costly and long. You are spending a lot of time proving the fault basis of the dissolution rather than focusing on concerns like minor children, property assets, or alimony.

Do you need an at-fault divorce lawyer? What are your options?

Hiring a lawyer is not your only path to getting legal guidance for your situation. Several lawyers and law firms have worked with Gavel to produce “legal apps” that can help you with this process:

• For those in California, Colorado, New York, Texas, and Utah; we have an app that guides you through divorce end to end
• For others in the US, this app can get you started
• Lastly, we have an app for Canadians

For more complex situations, contacting a lawyer in an at-fault divorce can be essential.  That lawyer can help you through your internal debate about filing on grounds of fault or not fault, whether you need to defend a claim of fault, or whether you have already filed and need help navigating the at-fault system.

References

N.D. Cent. Code Section 14-05-06 (2022).

Czaban v. Czaban (2007) 44 A.D.3d 894.