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The Differences Between Filing Fault and No Fault Divorce

January 19, 2017
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family law and defenseWhen you file for divorce, you must cite either “fault” or “no fault.” In other words, you have to give a reason why you’re getting divorced.

Your divorce or legal separation may come as a result of a cumulation of issues and disagreements, but this system makes the case far more clear and concise.

No Fault Divorce

This is the most common type of divorce. Regardless of reasoning, a spouse may cite “irreconcilable differences” as a reason for separation because any further reasoning could be provoking. Other times this excuse may be more valid. Some couples just grow apart. In this case, the reason for unhappiness in the marriage is no one’s fault, per se.

If one party files a no fault divorce, the other cannot hire a defense lawyer to overturn the charges. Any argument against a no fault divorce is automatically considered an irreconcilable difference.

Other no fault grounds include living in separate residences or not cohabitating for at least two years without children.

Fault Divorce

These types of divorce are far less common. In fact, some states don’t even allow these types of cases to be filed. A no fault divorce is when one spouse files for divorce based on the faults of the other. The most common causes are adultery, which is the cause of 20-25% of separations, according to mediation; abandonment for a period of time; prison time; inability to have sexual intercourse; and physical or emotional abuse.

Unlike a no fault divorce, a family law and defense team can defend a person against any of these accusations by disproving them or providing reasoning. Some of the most common defenses are:

  • Condonation: This is the claim that the spouse knew about the cited fault and forgave the defendant. This is most commonly used as defense if one spouse has had an affair, the couple resolved the problem, and moved on with their marriage.
  • Recrimination: This defense is used if the spouse who filed for the fault divorce is equally at fault for a similar charge. For example, if both spouses were having an affair, it is unjust and hypocritical to file adultery charges.

If one spouse was provoked by the other to engage is such behavior, then the charge is null. For example, if one spouse flees the home due to any type of abuse, then the other spouse cannot file for divorce based on abandonment. The other can seek the help of a family law and defense team, however, to file for divorce as well as criminal charges.

This most often does not work in favor of abusive spouses who cite that their spouse provoked violent behaviors.

In Tennessee, both non fault and fault divorces are allowed by law. If you are experiencing distress in your marriage and are seeking the help of a family law and defense team, then call Ken Phillips Family Law today at 615-461-7174.

Ken Phillips
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