What Is the Difference Between Fault and No-Fault Divorce?

In the past, many states required a person to both assert and prove certain grounds in order to be granted a divorce. This is referred to as a fault-based divorce. Now, most states, including Florida, are no-fault divorce states. Let us take a look at the difference between fault and no-fault divorce and the consequences it can have on a person filing for divorce.

What Is the Difference Between Fault and No-Fault Divorce?

In contrast with a fault divorce, a person looking to obtain a no-fault divorce need not assert a fault-based ground for the divorce nor does he or she need to go through the trouble of gathering proof to substantiate the fault-based ground. Instead, the spouse filing for divorce need only assert that the marriage is no longer working and is beyond repair. In other words, the spouse is saying that the marriage is “irretrievably broken.” Florida does also allow a divorce to be granted when one spouse has been mentally incapacitated for a minimum of three years prior to the filing of divorce.

Some may feel that it is a kind of injustice that a fault-based reason is no longer front and center of the divorce. The spouse seeking a divorce may actually want that day in court to point a finger at a spouse and claim that his or her actions were the cause of the marriage’s downfall. No-fault divorce, however, was actually established and has grown in popularity among the states because it provides the spouses relief from not only having to rehash painful and deeply personal issues in court but also relieves the spouses of the burden of having to provide proof of such personal issues in order to obtain a divorce.

While a person seeking divorce need not assert and prove specific, fault-based grounds to obtain a Florida divorce, fault may have certain notable impacts on divorce proceedings. Adultery, for instance, may no longer be available as a fault-based ground for divorce, but it can still be relevant in addressing a number of issues during divorce proceedings. Did you know that adultery is actually considered a crime in Florida? Although it is very rarely prosecuted. Adultery can still have significant impacts on a number of important divorce-related issues. A spouse will, however, need to provide proof of such indiscretions. 

Adultery can actually impact child custody determinations. Judges are steered by the best interest of the child standard in rendering such decisions and will make decisions by weighing a number of relevant factors. While adultery is not specifically included as a relevant factor, a judge will be looking to evaluate and consider the relationship with another individual if there is any evidence of that person causing any detriment or harm to the child.

Adultery can also have potentially significant impacts on the division of marital property and debts. Florida is an equitable division state meaning that the courts will aim to divide marital property in a way that is fair but not necessarily equally. To do so, the court will again look at a number of relevant factors to make such a determination. One such factor will likely be whether either spouse intentionally wasted any marital assets. For instance, if a spouse misused marital assets in the pursuit or furtherance of an affair, then the judge may consider such a waste of marital assets and adjust the distribution of marital property debts and assets accordingly.

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About the Author
Andrew Nickolaou, Esq., B.C.S., is a founding partner at Bernal-Mora & Nickolaou, P.A. He practices almost exclusively in divorce, marital and family law. Andrew and his partner, Ophelia Bernal-Mora, Esq., B.C.S., joined forces in March 2016 to form the unique and boutique husband and wife family law team at Bernal-Mora & Nickolaou, P.A. Together, Andrew and Ophelia take a practical and team-based approach to all of their cases and clients to deliver the highest quality experience and representation.