Are You Eligible for No-Fault Divorce: A Checklist

Are You Eligible for No-Fault Divorce: A Checklist

by Ronna L. DeLoe, Esq., October 2015

After New York became a no-fault divorce state in 2010, all states now permit no-fault divorce. A common no-fault divorce definition is that you do not have to prove fault or wrongdoing in the marriage to legally end it. Some states are true no-fault divorce states—they do not allow a marriage to end on grounds such as adultery, cruelty or abandonment, which means you must file a no-fault divorce. Most states still allow for both fault-based divorce and no-fault divorce. Some states have a waiting period, a period of separation, or a residency requirement, while other states require all three. What you need for your divorce depends on the no-fault divorce laws in your state.

What is No-Fault Divorce?

A no-fault divorce is when one of the parties to a marriage files for divorce based on their inability to get along. You do not need reasons for divorce. Some states call this irreconcilable differences, while other states call this the irretrievable breakdown of the marriage. They both mean the marriage is broken and cannot be fixed.

Does Your Spouse Have to Agree to a No-Fault Divorce?

Generally, the answer is no. No-fault divorces usually can be filed in most states by one spouse even if the other spouse doesn’t agree to the divorce. While no-fault divorce statutes were made to simplify divorces and keep costs down, in a few states the spouse not agreeing to the divorce can contest a no-fault divorce. This means that even though the divorce is filed under no-fault laws, the other spouse can fight the divorce itself by proving that the marriage has not been irretrievably broken for the required period of time. If this can be proved, a no-fault divorce cannot be granted.

What is Needed to File for No-Fault Divorce?

All states with no-fault divorce laws have requirements in addition to the irretrievable breakdown of the marriage or irreconcilable differences. The following may be required before filing a no-fault divorce:

  • Some states require a period of separation before you can file a no-fault divorce. Some states require you and your spouse to be physically separated for a few months. Other states require physical separation for up to two years. Because the laws are always changing, check with an attorney to determine if there is a separation period in your state.
  • Most states have residency requirements, although a few states do not have any. Some states’ residency requirements are strict but others allow ways to get around it, such as having been married in the state. Check with your county clerk or an attorney to see what the residency requirements are in your state.
  • Irretrievable breakdown of the marriage could mean inability to get along for a specific period of time such as six months. Check your state’s court site to see if there is a time requirement. Not all states have this requirement.
  • Does your spouse agree to the divorce? Even if your spouse doesn’t agree to the divorce, you can still file for a no-fault divorce by using no-fault divorce forms that are often available on your state’s court website. If your spouse fails to reply or show up for court, the court can grant a default judgment of divorce.
  • If your spouse agrees to the divorce, you can arrange to have a settlement agreement made, preferably by an attorney, who will know what should be in such an agreement. If you are agreeing to the terms of your divorce, such as custody, visitation, child support, spousal support, and division of assets and debt, then you have what is called an uncontested divorce. In a no-fault uncontested divorce, you will be avoiding a trial.
  • Your divorce also can be a no-fault contested divorce, which is where you and your spouse cannot agree to terms of the divorce. See if you can sit down with your spouse and work things out so you can agree to the terms of your divorce. If you cannot work out an agreement, you may want to use a mediator, if allowed in your state, or you may both need attorneys. Coming to an agreement will save you a lot of grief and aggravation.
  • Have you at least consulted with a family law attorney? You should consider doing so if you have issues that cannot be resolved or questions about the divorce. You also should consider consulting an attorney if you have children because divorces with children have additional issues, such as getting a fair and workable parenting plan. 

If you meet these requirements for a no-fault divorce, especially if it is uncontested, your case will move through the court system relatively quickly. A no-fault divorce is quicker, less expensive and generally less stressful than a divorce based on fault because you do not have to go to trial on the grounds for divorce. It allows you to proceed immediately to the terms of your divorce, which is the most important thing about your divorce in the first place.

LegalZoom can help you get an uncontested divorce. Start by completing an online questionnaire about your divorce. We'll help you fill out all of the paperwork you need and give you detailed instructions for how to file your paperwork.