Fault vs. No-Fault Options
All states offer no-fault divorce as an option, and most still include the traditional grounds as well. Again, state laws differ, but generally, if a state offers both routes (fault and no-fault), the no-fault option is only available when both partners agree. This creates some incentive for partners to work together, at least to some extent, in moving toward (or away from) divorce.
As a backup, many states allow no-fault divorce to proceed when one partner objects if the spouses have lived apart for a specified length of time, which can range from six months (Vermont) to five years (Idaho). However, some states do not allow a no-fault divorce in circumstances where there are children, or if the partners fail to agree.
In seeking a divorce for specific grounds, you need to prove in court that those grounds exist. This alone leads many couples to agree to a no-fault divorce, but there can be good reasons for you to go ahead and wash that dirty linen in public.
When to Choose the Fault Option
The primary reason to file for divorce on specific grounds is to protect your children. All states will consider parental behavior in deciding where children will live, who will care for them, and who can visit them.
Generally speaking, courts today will not punish a decent parent by taking away his or her children. If, for example, your spouse had an affair but is otherwise a good parent, this will probably not affect custody or visitation. On the other hand, abuse, desertion and criminal behavior will all be important in deciding how children will be cared for. If your spouse behaves in ways that puts your children in danger, you want the court to know.
A second reason might be to influence the financial settlements. Again, it's important to remember that the move toward a no-fault climate for divorce means that the courts will not punish bad behavior, or reward good behavior, by deciding how much money each spouse will receive. So, do not go to court looking for revenge. You are not likely to succeed, and may anger the judge (which is never a good idea).
On the other hand, if your spouse has behaved in ways that harmed you financially, this can legitimately affect the financial settlement and should be brought to the courts attention. For example, if you have been deserted and your spouse has failed to support you and your children for some time, a judge can require spousal support and child support to be retroactive. In other words, the judge can make your spouse pay you for all the time he or she was gone and in the future as you raise your children.
The courts are not happy with spouses who hide or misuse marital assets. If your spouse had an affair and spent money that belongs to both of you buying things for his or her new flame, some states see that as misuse of assets that should be repaid. This could be another reason to file for divorce on the grounds of adultery, rather than choosing the no-fault option.
Explore Your Options
Divorce is a traumatic and confusing time. It's hard to think straight and make good choice. Do not make a snap decision, or agree to something your spouse suggests without doing your own research. In all cases, it's vital to understand the laws in your state and how they apply to your situation. The point here is to consider all the options and choose the one that best fits your needs.