Fault vs. No-Fault Grounds for Divorce

Divorces can be emotionally fraught, especially if one spouse didn’t want to get divorced. Many clients contact divorce attorneys, hoping that evidence of their spouse’s infidelity or other wrongdoing will bolster their claim. Others don’t want to assign blame—they simply want to end the marriage for their own reasons.

In 2010, New York became the last state to allow no-fault divorce. Here’s an overview of the difference between fault-based and no-fault grounds for divorce.

Fault-based grounds for divorce

Fault-based divorce grounds include:

• Cruel and inhuman treatment, where it’s unsafe for the couple to cohabitate to specific cruel or abusive conduct of one spouse
• Continuous abandonment for a year or more (which can be by physically leaving the home or by a refusal to engage in marital relations)
• Imprisonment for three or more years, after the parties were married
• Adultery

No-fault grounds for divorce

There are three ways to obtain a divorce without having to prove fault grounds

• Living apart for a year or more, after obtaining a judgment of separation *
• Living apart for a year or more, pursuant to a separation agreement *
• The marriage has been irretrievably broken for six or more months

*These are known as conversion divorces but they require that there is substantial compliance with the agreement or Judgment of Separation.

Why does it matter?

Many people assume that if they can prove their spouse was unfaithful—or otherwise bears fault for the divorce—they’ll get a better settlement. This is not necessarily true. While judges can consider marital fault when dividing assets, the fault must be “egregious.” Egregious conduct is typically defined as outrageous or shocking to the conscience. Generally, adultery does not rise to the level of legally egregious conduct, even if it feels that way to the wronged party. In the great majority of cases, fault will not play a factor in the division of assets. Normally where there is significant domestic violence, a court may award the victim more than their equitable share of assets.

Ultimately, fault vs. no-fault grounds for divorce simply determine what the filing party must prove in court. No-fault grounds tend to be simpler and easier to file and resolve and are used almost exclusively in New York today.

If you need assistance with your divorce, call the knowledgeable Long Island divorce lawyers at Jakubowski, Robertson, Maffei, Goldsmith & Tartaglia, LLP today.