Fault Divorce Laws
In yesteryear, a spouse seeking a divorce had to prove that the other spouse had done something wrong. Often that something involved sex outside the marriage, but not always. Many states allowed divorce if the other spouse inflicted emotional or physical pain to the point of being cruel, deserted the family, was sentenced to prison, became insane or was physically unable to consummate the marriage. Grounds such as these qualified the spouse to obtain a fault divorce.
Current No-Fault Laws
All states today allow their residents to divorce without proof of any fault by the other spouse. This type of divorce is termed "no-fault" and only requires that one spouse say that the marriage is not working and is unlikely to work in the future. Each state has its own terminology. In some states, you must talk about incompatibility or irreconcilable differences, in others, irremediable breakdown of the marriage. No-fault divorce means that either spouse wanting to end the marriage can do so regardless of the position the other spouse takes on the issue.
Fault as a Timing Factor
Some states, including North Carolina, allow a no-fault divorce only after the spouses have lived apart for a full year. Other states require a waiting period before a pending no-fault divorce petition can be granted. In these states, proof of adultery might allow you to get a faster divorce. On the other hand, your spouse might contest your claims, making for a more hostile, expensive proceeding. Before filing for a fault divorce, you might want to discuss the pros and cons with a divorce attorney.
Property and Custody Issues
In some states, proof that your spouse cheated during the marriage can be one factor the court considers in dividing property, granting alimony or determining custody issues even if it is not used as a ground for the divorce itself. In community property states, each spouse is entitled to half of all of the income earned by the other spouse during the marriage, and infidelity does not affect that split. However, in equitable division states, like Mississippi, the judge has greater leeway to divide the property, and fault is sometimes considered. In some states, like Arizona, courts are not allowed to take adultery into consideration when making support awards. Consulting a lawyer can help you learn how fault allegations might affect your divorce.
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