Should I File a Fault or No-Fault Divorce?
Once upon a time, most states, including Utah, required proof of fault by one spouse in order to grant a divorce. The requirement of fault to grant a divorce served the public policy of preserving marriage and preventing impulsive divorces. Unfortunately, the fault requirement also forced some couples to stay together when it would have served them (and their children) better to end the marriage. Today, all 50 states allow some form of no-fault divorce, in which neither spouse must allege or prove wrongdoing by the other in order to terminate their marriage.
However, as of this writing, only seventeen states are true no-fault states, in which there is not even an option to file for divorce on fault grounds. “Grounds” for divorce essentially means “a legally acceptable basis” to end the marriage.
In the remaining states, including Utah, spouses have to choose between filing for divorce on fault grounds or pursuing a no-fault divorce. If no-fault divorce is available, is there an advantage to filing for a fault-based divorce? As with so many questions in the law, it depends.
Getting a No-Fault Divorce in Utah
Since 1987, Utah couples have been able to get a divorce by alleging “irreconcilable differences.” In other words, the marriage isn’t working, and the couple isn’t going to be able to make it work.” There is no waiting period to file for divorce based on irreconcilable differences.
Utah Code Section 30-3-1(3)(j) also provides that a couple who has lived under a decree of separate maintenance (legal separation) of any state for three years may also be granted a Utah divorce. Few people go into a legal separation planning to wait three years to divorce, but some couples know they want to live apart for a while without being certain they want to end their marriage. If they ultimately do decide to divorce, this ground is available to them.
The advantages of a no-fault divorce are many. These divorces are typically quicker, easier to prove, less contentious, and often less expensive because there is less fighting and no need to gather and present evidence of fault. With that said, there are still valid reasons to consider a fault-based divorce.
How Do I Get a Fault-Based Divorce in Utah (and Why?)
The grounds for fault-based divorce vary somewhat among the states that permit them. In Utah, the grounds for divorce based on fault are:
- Adultery committed after the marriage
- Impotence at the time of the marriage
- Desertion for more than a year
- One spouse intentionally neglects to provide for the other’s basic support
- Chronic drug or alcohol abuse
- Physical or emotional abuse
- Conviction of a felony
- Incurable insanity
Some of these grounds are relatively simple to prove, others more difficult. It may not be necessary for a spouse to prove one of the permissible fault grounds to get a divorce. But divorce is about more than simply ending a marriage; the divorce decree sets the terms for what property and support the spouses will take from the marriage and how they will co-parent after the divorce. The concept of fault can be highly relevant to those determinations.
Why You Should Consider Filing for Divorce on Fault Grounds
If you have the option of filing for a fault-based divorce or a no-fault divorce, which should you choose? You may want to consider filing on fault grounds, rather than no-fault in the following situations:
You Need Alimony (Or Want to Avoid Paying It)
Utah Code Section 30-3-5(9)(b) specifies that a court can consider fault in deciding whether to award alimony, and how much alimony to award. There are other factors the court must consider as well, of course. But if your spouse was at fault for the breakdown of your marriage, a finding of fault will weigh in your favor in an alimony determination. If you are the payor, you may not have to pay as much; if you are the recipient of alimony, you may receive more because of your spouse’s fault.
Your Spouse Wasted Marital Assets
Under Utah law, marital property is usually divided equally in a divorce. But if you and your spouse had marital assets worth $500,000, and he or she spent $100,000 on gifts for an affair partner? In your divorce, there is $400,000 in assets left to divide. If not for your spouse’s actions, there would have been more. Proving fault in the divorce gives the judge the authority to order a division of property that is fair and equitable, even if not necessarily equal.
In a case like this, a judge might award you $250,000 in marital property and your spouse $150,000, in recognition of the fact that your spouse had already “received” the other $100,000.
Your Spouse’s Actions Could Endanger Your Children
Child custody concerns are another reason to consider filing for divorce on fault grounds. Some types of fault that lead to the end of a marriage can also put children in harm’s way. For instance, if your spouse has a serious substance abuse problem, a history of domestic abuse, or severe and chronic mental illness, those could have an impact on his or her ability to safely and effectively care for the minor children you share. By proving and alleging fault in your divorce, you lay a foundation for the judge to grant you primary responsibility for your children or to order that the other spouse only spend time with the children when supervised.
No-Fault Divorce Guidance in Utah
In any case, the potential benefits of filing for a Utah divorce on fault grounds must be balanced against the many advantages of no-fault divorce. If you need guidance on how to proceed, please contact Barton Wood to schedule a consultation.