Should I File a Fault or No-Fault Divorce?

Determining how to file for divorce to obtain the best outcome can be difficult. Here’s what you need to know about the two different types of divorce options in New York, fault and no-fault divorce, and how to decide which is best for your unique circumstances.

Fault Divorce

In the past, a divorce could only legally be granted if one spouse showed wrongdoing on the part of the other, usually egregious in nature. When filing for divorce in this manner, the “fault” of the failed marriage lies with the individual who committed the wrongdoing. This could sometimes lead courts to favor the “innocent” spouse, awarding them more property or ordering the “guilty” spouse to pay more alimony. A fault divorce may be contested, meaning that the spouse shouldering the blame argues that they were not at fault for the breakdown of the marriage, or that it was the other spouse who committed the wrongdoing that should result in divorce.

No-Fault Divorce

No-fault divorce is a much more common form of divorce today, which allows a marriage to be dissolved with neither spouse assigning fault to the other. Often citing “irreconcilable differences,” a no-fault divorce does not require the demonstration of wrongdoing on the part of either spouse for the divorce to be granted.

Is New York a Fault State?

All states in the U.S. now allow for no-fault divorces. Some, however, still allow for fault divorces.

Grounds for Divorce on Long Island

If you wish to file for a divorce on Long Island, you must have one of the seven allowable grounds to do so, the first of which is a no-fault divorce:

1. Irretrievable breakdown of the marriage. The relationship has been over for a minimum of six months and both individuals are ready to move forward with the legal dissolution of the marriage.
2. Abandonment. An individual may file for a fault divorce in New York if their spouse has abandoned them for a period of at least one year. This includes physical abandonment and refusal of sexual relations.
3. Adultery. If one spouse cheats on the other, this may be cited as grounds for a fault divorce. This may be difficult to prove, however, since evidence is needed to support the claim of adultery.
4. Cruel and inhuman treatment. If one spouse has treated the other cruelly and the victimized spouse has been mentally and physically in danger within the last five years, a fault divorce may be granted.
5. Incarceration. A person may file for a fault divorce if their spouse has been imprisoned for a minimum of three consecutive years. This grounds for divorce may be used while the offending spouse is incarcerated, or up to five years following their release.
6. Divorce after issuance of a separation judgment. Used infrequently, this ground requires the Supreme Court to draft a separation agreement wherein a married couple live apart for one year prior to the dissolution of the marriage.
7. Divorce after legal separation. This is a common grounds for divorce if the couple has been legally separated for at least a year prior to filing.

Filing a No-Fault Divorce Even if Fault Exists

Often, grounds for divorce exist when a marriage becomes unsalvageable. However, it may not necessarily be in your best interest to file for a fault divorce using one of the available grounds. No-fault divorces can frequently proceed uncontested, which means you and your spouse agree on all matters regarding the divorce, including property division, alimony, child custody, and other pertinent issues. A no-fault divorce often costs less time and money than fighting a fault divorce in court.

Considering Your Divorce Options? Contact an Experienced Long Island Divorce Attorney

If you’re considering dissolving your marriage or have been served with divorce papers by your spouse, you face many obstacles ahead. Whether you decide to file for a fault or no-fault divorce, it’s critical to have someone in your corner who can advise you of your legal options and help you make informed decisions. By working with an experienced Long Island divorce attorney, you can increase the chances that you’ll achieve the best outcome possible. Contact Hornberger Verbitsky, P.C. today for more information by calling 631-923-1910.