When you file for a divorce, you must indicate why the marriage is ending on your divorce petition. You might often hear this referred to as the “grounds” for the divorce. Many people have heard the terms “no-fault divorce” and “fault-based” divorce but aren’t sure exactly what those terms mean or which option is best for their circumstances. That’s understandable, and we’re here to help offer clarity instead of confusion. Let’s take a closer look together.
What is Fault-Based Divorce?
In the past, almost all states required that some reason – a “fault” or “wrong” committed by one of the spouses, be listed as the reason for the divorce. Divorces typically were not granted simply because the spouses had grown apart and no longer wanted to be married. There was usually some marital misconduct required – an affair, abuse, an addiction, or an incurable mental illness, as a few examples of many.
What is No-Fault Divorce?
While fault-based divorce proceedings used to be standard, as time passed, it began to be more widely recognized that sometimes marriages end without one party committing one particular “fault” or another. Sometimes, people grow apart.
This led to the age of the “no-fault” divorce – which, as it sounds, is a divorce proceeding in which neither spouse is required to prove that the other did something “wrong.” In these cases, the wording of the divorce petition will often cite an “irretrievable breakdown of the marriage” or “irreconcilable differences.” These terms are simply a legal way of saying that the marriage no longer works for the parties. Every state in the country now allows no-fault divorces – and some still allow fault-based divorces.
Why Is Fault-Based Divorce Preferred in Some Cases?
Suppose you and your spouse have already agreed regarding the division of property and assets and are eager to move forward as quickly and efficiently as possible. In that case, a no-fault divorce may be the best option. However, a fault-based divorce may be more appropriate in many other cases.
In many states, establishing fault can ultimately result in a more extensive distribution of marital property for the spouse who is not at fault. Additionally, it may mean that the spouse who was not at fault receives alimony – or more than they would otherwise have received had the fault not occurred.
What States Recognize Still Have Fault-Based Divorce?
Seventeen states are considered “true” no-fault divorce states. These are Oregon, Washington, Nevada, Montana, Wisconsin, Missouri, Nebraska, Michigan, Minnesota, Iowa, Kentucky, Indiana, Kansas, Colorado, Florida, California, and Hawaii.
In these states, the parties are not allowed to cast blame on “fault” grounds. Typically, these states also require that the parties live separately for a designated period before they can file for a divorce.
All other states, including North Carolina, offer some hybrid of fault and “no-fault.” Deciding which option is right for you will require considering your circumstances and consulting with a knowledgeable and experienced attorney.
A Closer Look at North Carolina Law
Like all states, North Carolina allows parties to file for a “no-fault” divorce. In North Carolina, to obtain an absolute divorce, there are only two mandatory things:
- The couple has been physically separated for one year, and
- At least one party has resided in North Carolina for at least six months immediately before filing for divorce.
At least one of the spouses must intend for the separation to be permanent, and the couple must not resume their marital relationship at any time during the year before the separation. If a couple can establish that they meet these two factors, they may obtain a divorce, regardless of any fault.
Although North Carolina is technically a no-fault divorce state, the fault may still be significant. It may affect various issues, including temporary post-separation support and longer-term spousal support, also known as alimony.
Under North Carolina Statute 50-16.1A(3) “marital misconduct” includes:
- Illicit sexual behavior, including sexual acts with someone other than a person’s spouse;
- An involuntary separation caused by a criminal act (imprisonment, for example);
- One spouse abandoning the other;
- Maliciously turning one spouse out of the home;
- Oppressing your spouse or endangering their life;
- Wasteful or reckless spending by either spouse or the waste, diversion, destruction, or concealment of assets;
- Excessive use of alcohol or drugs;
- Willful failure to provide necessary subsistence for a spouse according to one’s means.
Those who can establish the existence of one of these grounds in North Carolina may be able to argue for more alimony or post-separation support than they otherwise would. In addition, a judge may consider these instances of misconduct as they attempt to determine the best child custody arrangements between the parties.
As a result, if you are a spouse who has experienced any of these instances of marital misconduct, you may want to pursue fault as a component of your divorce process and settlement. Indeed, the law can be complex and confusing, and each case will be different. You’ll want to consult an attorney who knows and understands the law and can advise you on your particular circumstances. At The Law Office of Dustin McCrary, we’re here for you.
Call the Law Office of Dustin McCrary Today
Divorce, like any legal process, can seem complicated and confusing. At times, it can feel overwhelming. It isn’t easy. At The Law Office of Dustin McCrary, we understand that. However, we also
know, and what we have repeatedly proven to our clients, that divorce can be manageable with the proper guidance. It can be a journey that leads you from a complex and confusing place to a place of optimism and hope for the new chapters ahead. It can be the start of a bright new beginning. We’re here to help you get there. We’ll meet you where you are and walk with you each step of the way.