By Sara Pitcher
Cordell & Cordell Indiana Divorce Lawyer
No-fault divorce is available in all states, although many states also offer a choice of pursuing a fault-based divorce.
In order to establish the grounds necessary for fault-based divorce, there must be a showing that one party has acted wrongfully and caused the breakdown of the marriage. In order for a divorce to be granted, there has to be evidence presented sufficient to establish that the wrongdoing has occurred and one party was therefore at fault.
Some acts that constitute grounds for fault-based divorce include adultery, physical or mental abuse, conviction of a felony, or abandonment. In cases where both parties can show fault on the part of the other party, the court will look to which party was least at fault and grant that party a divorce. This is called comparative rectitude.
Once fault has been established, the court will grant the party not at fault a divorce and, in some states, may often also award that party a greater share of the marital estate.
In addition to a larger share of the marital estate, fault-based divorces do not require a period of separation before the divorce will be granted in some states, including Indiana where I practice. This may make fault-based divorces more attractive to some people.
Divorce Resources:Your State's Divorce Laws
Most states are moving away from fault-based divorce, however, as they become increasingly rare. In order to be able to obtain a no-fault divorce, all states have residency requirements.
Prior to filing for dissolution of marriage in the state, the party filing must be a resident for a specified amount of time.
Once the residency requirement has been met, the state will have jurisdiction over the party filing and will be able to grant that person a divorce and change their marital status from married to single.
Divorce Waiting Period
Once the party has met the residency requirement, he or she can file a petition to dissolve the marriage. Many states require an additional separation period before the dissolution can be granted.
For example, In Indiana, the parties must be separated for a minimum of 60 days prior to the granting of a divorce. Louisiana requires a separation of 180 days, as does Minnesota. Idaho may require up to 5 years of separation prior to granting a no-fault divorce unless the parties consent to a reduced separation period.
Some states, such as Louisiana, even allow you to decide prior to marriage whether you will seek a fault-based or no fault-based divorce in the event of your marriage dissolving.
No-fault divorce is usually filed under "irreparable breakdown of the marriage," "irreconcilable differences," or something similar. One party cannot object to a no-fault divorce. The court has the authority to dissolve the marriage without the consent of one party.
Divorce Waiting Period:5 Reasons Why We Have Them
Does Marital Misconduct Affect Property Division?
In a no-fault based divorce, often evidence of adultery or other fault-based claims will not be permitted. There is often a presumption of an equitable division of property regardless of fault. Other factors, such as the earning ability of each spouse, will be considered in determining an equitable division, rather than considering fault.
However, some states allow evidence of adultery or other fault-based allegations in determining the division of the assets because it may be found that the adulterer dissipated, or wasted, marital assets, which may result in the value of the dissipated assets being set aside to the dissipater as part of her share of the marital estate.
When considering whether a fault-based or no-fault-based divorce would be best in your particular situation, you will first want to look to the laws and requirements of your state. Your best course of action would be to consult with a mens divorce attorney that exclusively practices domestic litigation to learn the specific options available to you in your state.