The Differences Between Fault and No-Fault Divorces
You may have heard of “fault” and “no-fault” divorce being discussed, and you wonder: What is the difference? What is a no-fault divorce?
This article will discuss
The difference between fault and no-fault divorce law in Oklahoma
Why, in almost all cases, you should file for no-fault divorce
What is a no-fault divorce?
A “no-fault divorce” is a divorce a court may grant, without you having to prove your spouse is at fault. Earlier in American history, to get divorced, you generally had to prove to a judge that your spouse had committed some type of misdeed that harmed the marriage. This was called “fault divorce.” From the 1930s through the 1980s, states began liberalizing their divorce laws, and now, all states allow no-fault divorce. Now, some states only allow no-fault divorce. Other states, Oklahoma included, give you the option of filing for either fault divorce or no-fault divorce.
Grounds for divorce in Oklahoma
Oklahoma law recognizes twelve grounds for divorce:
1. Abandonment for one (1) year.
4. When the wife at the time of her marriage was pregnant by another than her husband.
5. Extreme cruelty.
6. Fraudulent contract.
8. Habitual drunkenness.
9. Gross neglect of duty.
10. Imprisonment of the other party in a state or federal penal institution under sentence thereto for the commission of a felony at the time the petition is filed.
11. The procurement of a final divorce decree without this state by a husband or wife which does not in this state release the other party from the obligations of the marriage.
12. Insanity for a period of five (5) years
Incompatibility is the same as “no-fault” divorce in Oklahoma. You don’t have to prove fault to get divorced on grounds of incompatibility. All you need to do is state in your petition that you and your spouse are incompatible. To get divorced on any of the other eleven grounds, you need to prove fault.
Which should you choose: fault or no-fault divorce?
In Oklahoma nowadays, almost all divorcing spouses file on grounds of incompatibility. There are very few fault divorces granted in Oklahoma anymore.
This is because the process of fault divorce and no-fault divorce is largely the same. So, usually, there is no advantage in filing for a fault divorce.
In the few fault divorces I have seen, it seemed to me that the filing spouse was asserting fault grounds just so she could get embarrassing gossip into the public record. This type of legal drafting is spiteful and petty. I would never advise a client to file a divorce petition in this manner.
Nevertheless, there are a few minor advantages you may gain by filing a fault divorce.
For example, in most divorces with minor children, you have to wait ninety days after filing the petition before your divorce can be finalized. However, the ninety-day waiting period does not apply if you file for divorce for any of the following grounds:
1. Abandonment for one (1) year;
2. Extreme cruelty;
3. Habitual drunkenness;
4. Imprisonment of the other party in a state or federal penal institution under sentence thereto for the commission of a felony at the time the petition is filed;
5. The procurement of a final divorce decree outside this state by a husband or wife which does not in this state release the other party from the obligations of the marriage;
6. Insanity for a period of five (5) years, the insane person having been an inmate of a state institution for the insane in the State of Oklahoma, or an inmate of a state institution for the insane in some other state for such period, or an inmate of a private sanitarium, and affected with a type of insanity with a poor prognosis for recovery;
7. Conviction of any crime defined by the Oklahoma Child Abuse Reporting and Prevention Act committed upon a child of either party to the divorce by either party to the divorce; or
8. A child of either party has been adjudicated deprived, pursuant to the Oklahoma Children’s Code, as a result of the actions of either party to the divorce and the party has not successfully completed the service and treatment plan required by the court.
If you file for divorce on any of these grounds, your waiting period is thirty days.
These fault grounds don’t matter if there aren’t children of the marriage. If there are no children, your waiting period is ten days, regardless of whether you file on fault grounds or not.
In any divorce case, you may finalize your divorce in less time than the waiting period if there is an emergency. This is true whether you file on fault grounds or no-fault grounds.
Another difference between fault and no-fault divorce in Oklahoma is that in a no-fault divorce, if you have children, a judge must order you and your spouse to attend a class on helping children cope with divorce. In a fault divorce, the judge is not required to order you to attend such a program. However, the judge still has the option of ordering you to attend such a course if you file for a fault divorce.
The bottom line: There’s rarely any advantage to filing a fault divorce in Oklahoma. A disadvantage of filing for fault divorce is that you will have to present evidence and prove to a judge’s satisfaction that your spouse has committed the fault you allege. You don’t have to present any evidence of fault if you file on grounds of incompatibility. Because it takes time to present evidence of fault, filing for fault divorce merely adds extra unnecessary time to your case.
That’s why almost all divorcing spouses in Oklahoma file on grounds of incompatibility. Unless special circumstances apply to your case, I (and most other family law attorneys) recommend that, if you file for divorce in Oklahoma, you file on grounds of incompatibility.