Divorce Help 101
Fault
In years past, for a divorce to be granted, it was necessary for one spouse to show that some sort of fault had been committed by the other. While this was often possible, it was often not. This created a situation where frequently spouses would separate, but remain legally remarried. As time has passed, the majority of states allow for a divorce to be granted on the basis of no-fault.
However, while the majority of states allow a divorce to be granted on the basis of no-fault this does not mean that all states have done away with or abolished the concept of marital fault. It is still common for states to recognize fault or marital misconduct as a basis for a divorce. In the states where fault can still be plead as a basis for a divorce, such will generally allow for a divorce to be granted on a much faster time frame. For instance, some states allow an uncontested divorce to be granted on the basis of one year continuous separation.
In many of these jurisdictions a party can obtain a divorce substantially quicker if fault has been committed. For instance, in South Carolina if a spouse can show that adultery has been committed, that the other spouse suffers from habitual drunkenness, or that physical cruelty exists then the Court can grant a divorce after only 90 days. Other states can grant a divorce upon a showing that one spouse has committed certain felonies or even if one spouse is mentally ill.
In the case of an uncontested divorce, such as one year separation, the basis for the divorce can be non-defendable meaning that although one of the parties may not want the divorce, if the statutory requirements for the divorce have been met then the spouse seeking the divorce will be able to obtain it.
The time frames for separation for the purposes of a no-fault or uncontested divorce can vary from state to state. Some states allow for a shorter period and some for longer. While many people, after learning their particular state has a long waiting period, will contemplate moving to another state for the purposes of being divorced, typically states require that parties live in the state as a primary residency for a long period before being able to divorce.
One important aspect of fault in divorce is the impact it may have on issues such as child custody, alimony or even the division of the property of the marriage. While the laws do vary from state to state, many states will consider the fault committed by the spouses to a marriage. In states that consider fault in the area of property while the at-fault spouse will generally always retain some entitlement to the property of the marriage, meaning that there simply isn’t a scenario where one spouse receives everything and the other receives nothing; however, it is possible for the percentages of the property to vary as much as a 65-35 split in extreme cases. As well, if alimony is at issue and allowed in the state, then the likelihood of alimony being awarded increases.
Perhaps the most devastating part of marital fault is the problems that can be realized in the divorce process. It is not unusual for an aggrieved spouse to react to the fault by being unreasonable, sometimes to their own detriment, during the divorce process. This can lead to increased attorneys’ fees, drawn out legal proceedings, hard feelings and most unfortunately, emotional scars on the children of the marriage that can have profound consequences throughout their lives.
Disclaimer
However, while the majority of states allow a divorce to be granted on the basis of no-fault this does not mean that all states have done away with or abolished the concept of marital fault. It is still common for states to recognize fault or marital misconduct as a basis for a divorce. In the states where fault can still be plead as a basis for a divorce, such will generally allow for a divorce to be granted on a much faster time frame. For instance, some states allow an uncontested divorce to be granted on the basis of one year continuous separation.
In many of these jurisdictions a party can obtain a divorce substantially quicker if fault has been committed. For instance, in South Carolina if a spouse can show that adultery has been committed, that the other spouse suffers from habitual drunkenness, or that physical cruelty exists then the Court can grant a divorce after only 90 days. Other states can grant a divorce upon a showing that one spouse has committed certain felonies or even if one spouse is mentally ill.
In the case of an uncontested divorce, such as one year separation, the basis for the divorce can be non-defendable meaning that although one of the parties may not want the divorce, if the statutory requirements for the divorce have been met then the spouse seeking the divorce will be able to obtain it.
The time frames for separation for the purposes of a no-fault or uncontested divorce can vary from state to state. Some states allow for a shorter period and some for longer. While many people, after learning their particular state has a long waiting period, will contemplate moving to another state for the purposes of being divorced, typically states require that parties live in the state as a primary residency for a long period before being able to divorce.
One important aspect of fault in divorce is the impact it may have on issues such as child custody, alimony or even the division of the property of the marriage. While the laws do vary from state to state, many states will consider the fault committed by the spouses to a marriage. In states that consider fault in the area of property while the at-fault spouse will generally always retain some entitlement to the property of the marriage, meaning that there simply isn’t a scenario where one spouse receives everything and the other receives nothing; however, it is possible for the percentages of the property to vary as much as a 65-35 split in extreme cases. As well, if alimony is at issue and allowed in the state, then the likelihood of alimony being awarded increases.
Perhaps the most devastating part of marital fault is the problems that can be realized in the divorce process. It is not unusual for an aggrieved spouse to react to the fault by being unreasonable, sometimes to their own detriment, during the divorce process. This can lead to increased attorneys’ fees, drawn out legal proceedings, hard feelings and most unfortunately, emotional scars on the children of the marriage that can have profound consequences throughout their lives.
Disclaimer
