There are two kinds of divorce you should know about, fault and no-fault divorce. This guide will explain the difference.
About 39% of marriages now end in divorce. Despite this number falling lower than in past years, divorce is tough when it’s your divorce.
For anyone considering filing for a divorce, it helps to know more about your options. This includes both at fault and no-fault divorce laws. Knowing which type fits your situation will help you to better understand your rights during a divorce and what you can expect in the divorce process.
Read on to learn the differences between at fault and no-fault divorce and contact an experienced San Antonio divorce attorney if you have questions.
What Is a No-Fault Divorce?
No-fault divorces occur when neither party is to blame for the dissolution of the marriage. This means there is no need to prove that either spouse has done something to cause the marriage to end. Yet, it does show that the marriage has become “insupportable,” broken with no possibility of mending it.
In some cases, this is a mutual agreement by both parties that the marriage should end. It also works when only one party wants a divorce. Requesting divorce on the ground of insupportability may help reduce conflict because the person seeking a divorce isn’t blacing blame on their spouse. No fault divorce is the “it’s not you, it’s me” version of ending your marriage.
Some states may require the married partners to separate before filing for a divorce. This involves them living apart for a certain amount of time and is the main difference between the at fault vs no-fault divorce process.
The period of separation can be for up to two years and depends on the state that the divorce gets filed in. Texas is a unique state in that it does not require this by law but does impose a 60 day “cooling off” period before a no-fault divorce may be finalized.
A residency requirement also gets used in most states. This means that one of the partners must have lived in the state they are filing in for a certain amount of time. This also will likely be the case if you file for an at fault divorce as well.
Before preparing for a divorce, you want to become familiar with state laws. For example, most divorce cases in Texas will not move forward if the spouse is pregnant. You’ll also want to confirm how long you’ll need to be a resident of the state before filing.
What Is an At Fault Divorce?
An at fault divorce means one of the married partners has done something to cause the marriage to end, causing the wronged spouse to take action and file a divorce.
This process also varies depending on the state you live on. For example, in Texas, cruelty and adultery are grounds for divorce.
Another difference between at fault and no-fault divorce is the timing. This type of divorce often involves a longer and more involved process. Yet, each state has a different timeline.
An at fault divorce can also have higher legal fees and may use witnesses for proof of the committed faults. Retainer fees and hourly rates are questions to ask a lawyer before you hire them.
With an at fault divorce, you may not need to undergo a separation period or cooling off period. The wronged spouse can also sometimes get more marital property than the partner who is at fault.
Reasons for filing an at fault divorce include adultery, abuse, or cruelty (emotional or physical). Other situations include abandonment for a certain amount of time. The spouse of someone serving prison time may also qualify.
A spouse not being able to have sexual activity is reason enough in some states. North Dakota even allows a continuing refusal of sexual intercourse to be grounds for a divorce.
Other reasons can involve problems with drug or alcohol abuse. An At Fault divorce can also cover mental conditions, like insanity. These charges can sometimes be reasons enough for the court to decline alimony or spousal maintenance for the offending spouse. They may also increase payments from the offending spouse to the non-offending spouse.
Lastly, an at fault spouse may face greater restrictions on childy custody, conservatorship, or visitation. If the accusations are bad enough, they may be grounds for permanent termination of the offending spouse’s parental rights.
Defenses Against a Fault-Divorce
It is possible for a partner to fight an at fault divorce. As there are a few ways to try and prove that there was no fault surrounding a divorce.
This defense shows proof that one partner provoked the other to do something.
This shows that there was an agreement between both spouses that they kept to themselves to mislead the legal system for their own gain.
This is when both the accused and unaccused spouse have committed the same act, meaning they are both guilty. This often shows up in situations where both partners have engaged in sexual activity outside of the marriage.
This means the spouse had permission from the other person to engage in an act that is grounds for divorce. This may be a married person knowing about an affair and allowing it.
It can also allude to a spouse finding out about an affair and choosing to forgive their partner. Then the spouse goes on to file an at fault divorce later on.
This involves adultery charges where permission was given. The spouse has allowed their partner to engage in sexual activity with another person. This can also involve a spouse setting up the other to use this mistake against them in court.
These defenses may take extra time to move the divorce process along. Yet, most divorces do get granted, as the legal system does not wish to keep people in unhappy marriages.
What If Both Spouses Are at Fault?
In some situations, both partners may be at fault. This type of at-fault divorce can be for the same faults, such as adultery. They can also be for different faults, where both spouses have wronged the other in some way.
In this case, the court would find which partner is at greater fault. The partner with the least serious fault will then get the advantages of having the other party found “at fault,” such as a more favorable property division or greater control over the children. This gets called comparative rectitude, yet does not happen often in court cases.
Filing for a Fault or No-Fault Divorce
Whether you plan to file for an at-fault or no-fault divorce, there are a few things to do first. You’ll want to ensure you have lived in the state for the required timeframe. In Texas, this is a minimum of 6 months.
You also want to determine if you need family law services for a custody battle. For more information, contact Hoelscher Gebbia Cepeda PLLC for legal consultation in our San Antonio, Texas law office.