Fault Divorce

Fault divorce is a legal process that allows one spouse to seek a divorce on grounds of marital misconduct or fault committed by the other spouse. This comprehensive legal overview defines fault divorce, explains its legal significance, outlines common grounds for fault divorce, discusses the legal process involved, explores defenses to fault claims, and addresses the evolving landscape of divorce laws.

Definition of Fault Divorce:

Fault divorce, also known as divorce on fault grounds or at-fault divorce, is a type of divorce in which one spouse alleges that the other spouse has engaged in marital misconduct or behavior that justifies the dissolution of the marriage. Unlike no-fault divorce, which does not require either party to prove fault, fault divorce is based on specific grounds of misconduct.

Legal Significance of Fault Divorce:

Fault divorce holds legal significance for several reasons:

Grounds for Divorce: It provides specific legal grounds for ending a marriage, allowing the aggrieved spouse to seek a divorce based on the other spouse’s misconduct.

Asset Division: Fault may impact the division of marital property, with the aggrieved spouse potentially receiving a more favorable distribution.

Spousal Support: Fault can influence spousal support (alimony) awards, affecting the amount and duration of payments.

Child Custody: In some cases, fault may be considered when determining child custody arrangements if the misconduct has had a detrimental impact on the children.

Common Grounds for Fault Divorce:

Grounds for fault divorce vary by jurisdiction but typically include:

Adultery: Marital infidelity, defined as engaging in sexual relations with someone other than the spouse.

Cruelty: Physical or emotional abuse that endangers the physical or mental well-being of the other spouse.

Desertion or Abandonment: The intentional and unjustified abandonment of the marital home and duties without consent.

Substance Abuse: Drug or alcohol addiction that substantially impairs the spouse’s ability to fulfill marital duties.

Impotence: An inability to engage in sexual relations, concealed from the other spouse prior to marriage.

Felony Conviction: Conviction and imprisonment of one spouse for a specified period.

Incurable Mental Illness: A mental illness that renders one spouse permanently institutionalized or incapacitated.

Legal Process for Fault Divorce:

The legal process for fault divorce typically involves the following steps:

Filing a Complaint: The aggrieved spouse files a formal complaint or petition for divorce, specifying the grounds for fault.

Service of Process: The non-filing spouse is served with the divorce papers, providing notice of the proceedings.

Response and Counterclaim: The non-filing spouse can respond to the complaint and may file a counterclaim, contesting the grounds or seeking their own divorce based on fault.

Discovery: Both parties may engage in the discovery process, gathering evidence to support their claims.

Negotiation or Mediation: The parties may attempt negotiation or mediation to reach a settlement on property division, spousal support, and child custody.

Trial: If a settlement cannot be reached, the case proceeds to trial, where both parties present evidence and arguments to the court.

Judgment: The court issues a judgment of divorce, specifying the grounds for fault and addressing property division, support, and custody.

Defenses to Fault Claims:

In fault divorce cases, the accused spouse may present defenses to challenge or mitigate the allegations:

Denial: The accused spouse may deny the misconduct alleged and challenge the evidence presented.

Recrimination: The accused spouse may assert that the filing spouse is also guilty of the same or similar misconduct, nullifying the grounds for fault.

Condonation: If the filing spouse forgave or condoned the misconduct after becoming aware of it, it may serve as a defense.

Provocation: The accused spouse may argue that their actions were provoked by the behavior of the filing spouse.

Collusion:  Accusations of collusion, where both spouses conspired to create false grounds for divorce, can invalidate the claim.

Evolving Landscape of Divorce Laws:

Over time, many jurisdictions have moved toward no-fault divorce as the preferred method of divorce, eliminating the need to prove fault. No-fault divorce allows couples to divorce without alleging misconduct, simply citing “irreconcilable differences” or similar reasons.

However, fault divorce still exists in many jurisdictions, particularly for cases involving significant misconduct or when one spouse seeks to gain a legal advantage in property division or support awards.


Fault divorce is a legal process that allows one spouse to seek a divorce based on specific grounds of misconduct committed by the other spouse. It holds legal significance in determining asset division, spousal support, and child custody. Common grounds for fault divorce include adultery, cruelty, desertion, substance abuse, impotence, felony conviction, and incurable mental illness. The legal process involves filing a complaint, responding to allegations, discovery, negotiation or mediation, trial, and judgment.

Accused spouses may present defenses to challenge the allegations. It is essential to recognize that divorce laws have evolved, and many jurisdictions now favor no-fault divorce as a simpler and less adversarial option. Understanding the concept of fault divorce and its implications is crucial for individuals navigating the divorce process and for legal professionals advising clients on their options.

If you are in need of a family law attorney contact us today.
For more family law terms visit our glossary page.

Related Articles

Fill in your name, email and then hit "Download Now." That's it!​

Fill in your name, email and then hit "Download Now." That's it!​

Tell us where to send our latest podcast episodes