No Fault Vs. Fault Divorce

What is a “No Fault” Divorce?

You may have heard the term “no fault divorce” and wondered precisely what it means under Georgia law.

Georgia is what is known as a “no fault divorce” state, meaning that no fault divorces are legally allowed.

But what exactly is a no fault divorce, and how does getting one work?

The short answer is that you can get a no fault divorce in Georgia if your marriage just isn’t working, and you don’t have to show that wrongdoing on the part of either spouse has occurred.

A divorce without claiming spousal wrongdoing is what’s known as a no-fault divorce.

Notably, the process for getting one is often quicker, easier and cheaper than a divorce on the grounds of some type of fault.

For these reasons, no fault divorces are the most common type of divorce in Georgia.

What is a “Fault” Divorce?

The other type of divorce you can seek in Georgia is known as a fault divorce – also called an at-fault divorce.

When you file for divorce in Georgia, you must choose one of 13 statutory grounds for the dissolution of the marriage. These grounds are:

1. Intermarriage by persons within the prohibited degrees of consanguinity or affinity.
2. Mental incapacity at the time of the marriage.
3. Impotency at the time of the marriage.
4. Force, menace, duress, or fraud in obtaining the marriage.
5. Pregnancy of the wife by a man other than the husband, at the time of the marriage, unknown to the husband.
6. Adultery in either of the parties after marriage.
7. Willful and continued desertion by either of the parties for the term of one year.
8. The conviction of either party for an offense involving moral turpitude, under which he is sentenced to imprisonment in a penal institution for a term of two years or longer.
9. Habitual intoxication.
10. Cruel treatment, which shall consist of the willful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies apprehension of danger to life, limb, or health.
11. Incurable mental illness.
12. Habitual drug addiction.
13. The marriage is irretrievably broken.

Grounds 1-12 are all “faults” alleged to have been committed by one of the spouses, and a fault divorce would proceed by demonstrating that one of these circumstances had occurred.

In contrast, ground 13, which states that the marriage is “irretrievably broken”, is the legal basis for no fault divorce in Georgia.

How Does Fault Impact a Divorce?

Since we’ve already mentioned that no fault divorces are generally easier to get than a fault divorce, you may be wondering why anyone would bother to seek a Georgia divorce on fault grounds.

The answer is that a divorce granted on fault grounds may have implications for things like child custody, alimony, property division and more.

Judges can consider fault when deciding things like whether to award alimony and how much, what portion of the marital estate should go to each spouse, and even who gets custody of the kids.

While acts of spousal wrongdoing like adultery or desertion do not debar a spouse from equitable property division, alimony, or the right to child custody, they can be – and usually are – taken into account when deciding.

More serious issues of fault like criminal convictions, habitual drug addiction, severe mental illness and cruel treatment can significantly impact how a fault divorce is ultimately decided.

For these reasons, it may be a good idea to seek a fault divorce when wrongdoing has occurred—but not always.

An experienced Georgia divorce lawyer can assess your situation and advise you on your best legal strategy.

Fault vs. No Fault Divorce

While there are many good arguments for seeking one type of divorce over the other, your individual circumstances and preferences will weigh heavily on which one you choose.

Here’s a look at the pros and cons of both types of divorce.

No Fault Divorce

Pros:

• Generally shorter and quicker process, with greater likelihood of avoiding a court battle.
• Usually less contentious.
• No burden of proof.
• Often less expensive.
• Maintains privacy by keeping details of wrongdoing out of court and the public record.
• Can be used whether or not there has been spousal malfeasance.

Cons:

• Fails to bring the court’s attention to misbehavior that should be considered when deciding financial or custody matters.
• Denies the wronged spouse the chance to have grievances heard in court and recorded.

Fault Divorce

Pros:

• Can provide more leverage when arguing for alimony, child custody and division of assets.
• Allows the wronged spouse to have their grievances heard by the court and made record.
• May be necessary in order to get lasting protection orders, sole custody and other legal protections when a spouse presents a serious danger.

Cons:

• A more complex process that often takes longer and costs more.
• Fault must be proved, which can sometimes be difficult.
• Both sides’ “dirty laundry” will be aired for all to see.
• Can backfire if the “wronged” spouse is demonstrated to have committed malfeasance, as well.
• Only an option when a spouse has committed marital malfeasance.

A good divorce lawyer can help you weigh your options and decide which type of divorce to pursue.

While you are not legally required to have a lawyer in order to get a divorce in Georgia, it is strongly recommended.

Even a no fault divorce filing can easily turn contentious, and having expert legal representation on your side can help you win a better judgement in your divorce.

Misconceptions About Fault and No Fault Divorce in Georgia

A fault divorce will eliminate the need for legally required separation.

One of the biggest arguments for pursuing a fault divorce in other states is that it eliminates the need for a legally required separation period.

However, Georgia does not have such a requirement and requires only a 30-day cooling off period after you file for divorce.

Both spouses have to want to end the marriage in order to get a no fault divorce.

Not true. Either spouse can ask for a no fault divorce in the state of Georgia, even if the other spouse doesn’t want it.

My spouse won’t get any alimony because they cheated.

While proven adultery can affect alimony awards and the division of assets, it doesn’t always.

Moreover, if your spouse cheated and you took them back afterward, they can argue in court that you forgave the behavior and still win an alimony judgement.

I’ll lose custody of my kids because I cheated.

While the Georgia courts do take faults like infidelity into account when deciding on issues like child custody, adultery in itself should not keep you from getting custody of your kids.

The exception is adulterous behavior that is so blatant as to cause distress or harm to the child or children.

In these cases, the court may decide that you did not act in your child’s best interests and choose to award custody to your spouse.

Contact Our Cherokee County Divorce Attorneys Today

Weighing the choice between a fault and no fault divorce? Speights Law can help.

We can advise you on all your options and help you take the necessary next steps.