The short answer to the above question is no. You need not allege fault on the part of your spouse in order to get a divorce. All 50 states allow no-fault divorces, meaning you need only allege that you and your spouse have “irreconcilable differences” and your marriage therefore is “irretrievably broken.”
Just because you don’t have to allege or prove fault on your spouse’s part, however, doesn’t mean you can’t. Almost all states allow fault to enter into a divorce if the circumstances of your marriage call for it.
Why You Might Want to Allege Fault
The main reasons why you may want to allege fault in your upcoming divorce is that, if you can prove your allegations, the judge may award you more spousal support, child support and/or marital property than you would receive in a no-fault situation.
Fault Divorce Grounds
Common grounds for a fault divorce include the following:
- Your spouse committed adultery.
- Your spouse committed spousal abuse, child abuse or other “cruel and inhuman” actions that make it unsafe for you and your children to live with him or her.
- Your spouse abandoned you and the marriage at least one year prior to your petition for divorce.
- Your spouse has been incarcerated for three or more years and is likely to remain incarcerated for the foreseeable future.
- You and your spouse have lived apart for one or more years, with or without obtaining a legal separation.
Keep in mind that abandonment can take two forms, actual and constructive. In an actual abandonment, your spouse left home with no intention of returning or continually locked you out of the marital home, preventing your return. In a constructive abandonment, your spouse refused to engage in sexual relations with you for a year or more.
Fault Divorce Downsides
While a fault divorce will give you the opportunity to publicly state your grievances against your spouse so as to “justify” your divorce, it also gives him or her the opportunity to defend against those alleged grievances. There’s also the possibility that he or she will counter-sue, alleging that you, rather than he or she, are the true party at fault.
As you might expect, a fault divorce takes considerably longer to obtain than a no-fault divorce and also costs considerably more since alleging fault necessarily involves additional court time and other expenses.
Regardless of whether or not you wish to allege fault in your divorce, you would do well to engage the services of an experienced family law attorney. He or she can protect your rights and guide you through the entire divorce process. Contact a local divorce lawyer in New York, NY, like the Kleyman Law Firm to schedule a consultation and discuss your best path forward.