In 1969, California became the first state to allow couples to get a divorce without one spouse having to allege and prove that the other spouse was at fault for the end of the marriage. By 2010, every state allowed couples to file for some form of "no-fault" divorce. But many states have kept the option of filing for a fault divorce.
Here's an overview of the differences between a fault and no-fault divorce.
What Is a Fault Divorce?
In a fault divorce, you have to show that your spouse did something to cause the breakdown of your marriage. Divorce is a matter of state law, so fault grounds vary depending on where you live. Typically, however, fault grounds include:
- adultery
- bigamy
- desertion or abandonment
- cruelty or domestic violence
- impotence
- alcohol or drug abuse, and
- a conviction of certain crimes (sometimes only if the spouse is incarcerated).
When you file for a fault divorce, you’ll have to prove that your spouse engaged in the misconduct that you've claimed happened. For example, if you're requesting a divorce based on your spouse’s adultery, you’ll need evidence of your spouse’s sexual affair with another person.
Divorce Based on Your Spouse's Mental Illness
Of course, mental illness isn't misconduct. But many states include severe mental illness (or "insanity") as one of the fault-based grounds for divorce. And some states that only have no-fault divorce also include mental illness or incapacity as a divorce ground.
There are usually strict requirements for divorce based on mental illness, such as:
- proof that your spouse has been involuntarily committed to a psychiatric institution for a certain period of time with no hope of recovery, or
- testimony from medical professionals that your spouse doesn't have the legal capacity to make decisions, and that the condition is permanent.
You should know that whether you choose this or another ground for divorce, you could be responsible for providing financial support for a spouse who can't work because of severe mental illness.
What Is a No-Fault Divorce?
Today, all states offer no-fault divorce. Most states allow you to file for a no-fault divorce based on grounds like “irreconcilable differences,” “incompatibility,” or the “irretrievable breakdown of the marriage.” These grounds are all different ways of saying the same thing—you and your spouse have fundamental differences and your marriage is broken beyond repair.
In a few states, however, spouses may not get a no-fault divorce unless they've been separated for a period of time. The separation requirement may apply before they can start the divorce process or before they can get a final divorce. In South Carolina, for instance, you must have lived separate and apart from your spouse for a full year before you may file for a no-fault divorce. (S.C. Code § 20-3-10 (2024).)
What’s the Difference Between a Fault and No-Fault Divorce?
Because you don't have to prove misconduct, getting a no-fault divorce is usually less contentious and stressful than a fault divorce. It may also be quicker and less expensive, but that will depend on how many other disputes you have to work out through the legal process (such as child custody).
While it’s tempting to list all your spouse’s bad actions in your divorce complaint, you should know that fault divorces tend to be more complicated, contentious, and difficult. Also, filing for a fault divorce might not ultimately make that much of a difference in the outcome of your case. Even if you file for a no-fault divorce, some states allow judges to consider a spouse's misconduct—especially infidelity—when awarding alimony or dividing property, particularly if the misconduct affected the amount of assets available for distribution in the divorce.
Still, if you think that filing for a fault divorce will be to your benefit, you should speak with a family lawyer who can evaluate your case and help you decide whether that would be the best course of action. And you should definitely consult with a lawyer to learn about your rights and responsibilities if you're divorcing a spouse who's incapacitated or institutionalized for severe mental illness.