What is the Difference Between Fault and No-Fault Divorce?

October 12, 2022 | J. Benjamin Stevens | Share:

Bride and groom figurines standing on two separated slices of wedding cakeEven when you’re in a rocky marriage, deciding to get a divorce is a huge decision. Generally, the process starts with you having a lot of fear and also a lot of questions. One of the first questions you might have is, what is the difference between fault and no-fault divorce? Keep reading to find out more about the different types of divorce so you can make the best decision for your situation.


What is Fault Divorce?

 A fault-based divorce occurs when one spouse files for divorce because they claim the other spouse did something that caused the marriage to end. In order for a fault divorce to be granted, the person filing for divorce must prove that their spouse did something wrong, but it must be one of the allowed reasons under your state’s divorce laws. Some examples of things that could be used as grounds for a fault divorce include adultery, domestic violence or physical cruelty, or substance abuse or habitual drunkenness.

If you file for an at-fault divorce, it can affect how much money you receive in the divorce in certain situations. One common example of this is if your spouse had an affair, the court might rule that they should have to pay you more money in the settlement because they were at fault for causing the marriage to end or because they wasted marital assets spending money on the affair.

In some states, a fault divorce may also affect child custody orders if the court believes that the spouse’s actions affected the children negatively. For example, if your spouse was abusive to you or the children, the court might give you primary custody of the children and require either supervised visitation or restrict visitation entirely because they believe it is in the children’s best interests to be protected from that parent.

Another great example is when the fault ground is habitual drunkenness or substance abuse. These allegations, if proven, may show the Court that one parent is unable to stay sober, which may also render them unable to properly care for a child alone. Family Court judges will work hard to ensure that any Orders they put in place regarding the children will keep the children safe and in an environment that won’t be likely to expose them to dangerous or illegal activities.

However, even if you’re able to prove your spouse’s adultery was the cause of the break-down of the marriage, it’s not likely to seriously impact any child custody orders unless you’re also able to prove that your children were directly exposed to your spouse’s adultery (by your spouse, not you!) or that a paramour is somehow an unfit person who would be a danger to the children. Many parents include language in their child custody agreements about how they want the children introduced to future romantic partners, but it’s unlikely that either parent will be totally barred from exposing the children to their future significant others without actual evidence of unfitness.


What is No-Fault Divorce?

 A no-fault divorce is typically when both spouses agree to get a divorce, and neither spouse (legally) blames the other for causing the marriage to end. In order to file for a no-fault divorce, most states require that you and your spouse live apart for a certain period of time before you can file to finalize the divorce. In South Carolina, this time period is defined as continuously living separate and apart for more than one year.  Also, living apart means separate residences, not merely living in separate rooms in the same house.

If you have minor children, some states require that you and your spouse attend counseling before you can file for a no-fault divorce. This requirement is in place because officials want to make sure that divorcing couples have considered all options before making such a big decision. South Carolina has no such requirement, but as a family law attorney who has been doing this work for almost thirty years, I regularly recommend that my potential clients consider marriage counseling to ensure they know they are making the right decision for their family. If marriage counseling doesn’t work, I always recommend that my clients have individual counseling throughout the divorce process. Having a trained therapist onboard to help process the intense and challenging emotions you’ll experience through this process is always a great idea.


Final Thoughts

 The type of divorce you file will affect different aspects of your life, so it is important to choose the type of divorce that is right for your specific situation. If you are still not sure which type of divorce to file, it might be helpful to speak with an attorney who can give you more information about your state’s requirements and help you make the best decision for your particular case. If you choose to file for a fault divorce, there may be several things that need to be done to gather evidence before you leave the marital home, so consulting with an experienced family law attorney in your area is the best way to prepare your case even before you file it.

If you and your spouse are considering divorce, don’t make any decisions about how to proceed before talking with a trusted attorney in your area. Your divorce and any settlement you create will be subject to your state’s divorce laws. Without discussing your situation with an attorney, your agreement may not be what you want or what is beneficial to your future.


Mr. Stevens is a Fellow in the prestigious American Academy of Matrimonial Lawyers and the International Academy of Family Lawyers, and he is a Board-Certified Family Trial Advocate by the National Board of Trial Advocacy. If you or someone you know is facing a divorce, separation, child custody, visitation, or other family law case, contact our office at (864) 598-9172 or SCFamilyLaw@offitkurman.com to schedule a consultation.


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Contact our office at (864) 598-9172 or SCFamilyLaw@offitkurman.com to schedule an initial consultation.



Ben.Stevens@offitkurman.com | 864.598.9172

Aggressive, creative, and compassionate are words Ben Stevens' colleagues freely use to describe him as a divorce and family law attorney. Mr. Stevens is a Fellow in the prestigious American Academy of Matrimonial Lawyers, the International Academy of Family Lawyers, and is a Board Certified Family Trial Advocate by the National Board of Trial Advocacy. He is one of only two attorneys in South Carolina with those simultaneous distinctions. He has held numerous leadership positions in the AAML, and he currently serves as one of its National Vice Presidents. Mr. Stevens has a statewide practice and regularly appears all across South Carolina.  His practice is focused on complex divorce and child custody cases.

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