Photo Of Attorney Jane K. Cristal

Protecting Your Rights And Best Interests

In Divorce And Other Family Law Matters

“No-fault divorce” versus “fault divorce”

On Behalf of | Jul 14, 2020 | Firm News |

Divorces can be resolved without the need for a judge to make life decisions for departing spouses. However, this is often not the case as couples cannot reach an agreement on one or more key divorce issues. This inability to agree can stem from the reason one spouse is asking for divorce. This is when the difference between a no-fault and fault divorce.

The difference between these two types of divorces can be significant. A New York no-fault divorce means that the spouse filing for divorce is not required to prove any fault of the non-filing spouse.

This is often referred to as “irreconcilable differences” or an “irreparable breakdown of the marriage.” This type of filing is important because the non-filing spouse cannot object to the divorce petition. After all, objecting to an irreconcilable differences filing can look like proof of that irreconcilable difference.

While all states in the U.S. have a no-fault divorce process that is not the only type of divorce. A spouse filling for divorce can also file for a fault divorce, but this is not a common filing. Many states no longer recognize these types of divorces, but New York still allows these types of petitions.

Here, divorce laws allow for a spouse filing for divorce to petition the court to grant a divorced based on the fault of the non-filing spouse. Most commonly, fault is based on adultery. But, it can also be based on abandonment for one or more years, imprisonment for three or more consecutive years, or separation for one or more years.

Nonetheless, while New York still recognizes fault divorce, it is important to note that family court judges normally do not factor in this fault when considering alimony, child support, property division, etc. It is only when the underlying fault is egregious that it becomes a factor, like when marital assets were used to support the adultery. As this fault would then reduce marital assets, the judge could reduce the cheating spouse’s property allocation by the amount used to support the adultery. This is why determining which type of divorce filing upfront is so important and why getting professional help in making that determination can make a huge difference in divorce outcomes.