Difference Between Fault vs. No-Fault Divorce

Divorce Process

There are a lot of terms used when it comes to divorce, and it can be overwhelming to grasp what they all mean. Significantly, you may be wondering what the difference is between fault vs. no-fault divorce — and having an understanding of these terms is crucial if you are thinking about ending your marriage. Whether you file for no-fault divorce or raise instances of marital fault in your divorce petition can have a significant impact on how your case proceeds through the court system.

What is No-Fault Divorce?

California, like every other state, is a no-fault divorce jurisdiction. This means that neither spouse needs to place blame or prove the other did something wrong to legally terminate the marriage. Rather, a divorce can be filed based on “irreconcilable differences.” In other words, a party doesn’t need to demonstrate marital misconduct to file for a no-fault divorce — they simply need to allege that the spouses could not get along or agree on important issues.

To obtain a no-fault divorce, only one spouse needs to consent to end the marriage. There is nothing the other spouse can do to stop the divorce. However, there is a six-month waiting period imposed by state law, beginning on the date the respondent spouse is served with the divorce papers. While a divorce case can sometimes be completed in less time, if both spouses agree on all the issues that must be decided, a court will not issue the judgment until the six-month mark.

What is a Fault-Based Divorce?

There are only two divorce grounds a couple can use to legally end a marriage in California: irreconcilable differences and permanent legal incapacity. The transition away from fault-based divorce, a time when parties needed a judge’s permission to divorce, has eliminated the need for contentious court proceedings and extensive trials based on “fault.” But while California courts do not consider marital fault when granting a divorce, there are still instances in which a spouse’s actions or misconduct during the marriage can impact the issues that must be decided.

Marital fault may be relevant in the following situations:

  • Adultery — Although adultery is not usually relevant when granting a divorce, it can sometimes be a pertinent issue if marital funds were used by a spouse to carry out an extra-marital affair.
  • Wasteful dissipation of marital assets — Marital assets might not always be dissipated in connection with an affair. Maxing out credit cards, incurring unreasonable debt, and excessive gambling are all examples of conduct that may constitute wasteful dissipation of marital assets. A spouse may be ordered to return the funds to the marital estate. This type of misconduct can also impact how marital property and assets are divided.
  • Domestic violence — A spouse’s abuse or domestic violence could factor in when deciding child custody matters. If a parent is unfit and the child would be in harm’s way, a court would likely grant custody to the other. A court may also consider whether the spouse subjected to domestic violence impacted their ability to earn a living when it comes to deciding a spousal support award.

Contact an Experienced California Divorce Attorney

Knowing whether to file for a fault vs. no-fault divorce can be confusing and stressful. It’s important to have a skillful divorce attorney by your side who can explain your options and guide you through the process. Located in Walnut Creek, California, Bednarczyk & Valerio, LLP offers trusted representation and knowledgeable counsel to clients in California for a wide variety of matrimonial matters, including divorce. Call 925-464-2494 or contact us online to schedule a consultation to learn how we can help.

Categories: Divorce