What is the difference between at-fault divorce and no-fault divorce?

By Kecia Van’t Hof and Isabella Erickson

Depending on which state a person lives in, a person seeking divorce will face different legal requirements. Although every state now has some option for no-fault divorce (typically by agreement of the parties), some states, such as South Dakota, retain at-fault divorce laws. Iowa, on the other hand, is a no-fault state. What does this mean, and how does this affect the divorce?

First, at-fault divorce laws require proof that there be grounds for the divorce rising above incompatibility. Examples of acceptable grounds for divorce in an at-fault state are adultery, extreme cruelty, and willful neglect. This is not a comprehensive list, but it demonstrates the kind of behavior that constitutes fault. In an at-fault state, someone must be “responsible” for the marriage falling apart. The party alleging fault files for divorce and must prove the behavior alleged for the divorce to be granted.

By contrast, a no-fault state requires no blame to obtaining a divorce. No fault is required at all. A showing that there has been a breakdown of the marriage that is unlikely to be remedied is all that is required. In other words, a single member of the marriage may file with the court and the divorce will be granted. However, in no-fault states, there is typically a requirement for a waiting period from when the divorce is filed to when it is finalized. This allows the parties to “cool off” and gives them time to decide if a divorce is what they really want. In no-fault divorce cases, the majority of court activity relates to the distribution of marital assets and child custody.

Divorce laws vary from state to state. If you are seeking a divorce, it is important to know what your state requires. If you are planning to get a divorce, contact Gehling Osborn law firm.