No-fault divorce is currently an option in every state, although it goes by different names. Many people prefer it to a fault-based approach, because it doesn’t require one spouse to blame another for the break-up or accuse them of something like adultery, substance abuse, impotence, neglect or worse. This act of avoiding blame may be particularly important when a spouse has children whom they want to protect from negativity about their other parent.
Fault-based laws in all states go back a long way. Some of the faults a spouse can choose from use language that’s seldom, if ever, used today. Here in Rhode Island, one potential “fault” that be used is “gross misbehavior and wickedness.”
Is choosing a fault-based divorce ever the better option?
People often think they have a better chance of getting spousal support or a larger share of the couple’s assets if they can accuse a spouse of wrongful behavior, like adultery. Sometimes, unfortunately, they just want to embarrass their spouse by making an issue like substance abuse public by getting it in the court record.
Judges may or may not take fault, assuming it’s proven, into account when making decisions around support, custody and property division and other matters. Specifically, Rhode Island law states that a judge may consider the “conduct of the parties during the marriage” in their orders and rulings.
It’s wise for the spouse citing a fault to tie that fault to what they’re requesting. For example, if the other spouse has a substance abuse problem or has been verbally and/or physically abusive, that’s relevant to what kind of parenting rights they should be granted, if any. If a spouse has spent many thousands of dollars over the years on drugs or extramarital affairs or has failed to do their part to support the family, that can be an argument for getting a larger share of marital property.
Deciding whether to seek a no-fault or fault-based divorce is a process that should be influenced by the unique circumstances of each couple and their marriage. Getting sound legal guidance before filing for divorce can help spouses determine which option is better for them uniquely.