The Pros And Cons Of At-Fault Divorce

On Jan. 1, 2016, the state of Illinois will overhaul its divorce law – known as the Illinois Marriage and Dissolution of Marriage Act – for the first time since 1977.

One of the major changes in the overhaul will be the elimination of at-fault divorce grounds. Now, the only grounds for divorce in Illinois will be irreconcilable differences.

Currently, the law says that to get a divorce, “proper and sufficient proof of the existence of grounds” is required. The state lists 10 fault-based grounds, in addition to irreconcilable differences.

Although the majority of Illinois divorces are already based on irreconcilable differences, this overhaul will, in theory, lead to more amicable divorces by eliminating the blame game in the process.

Here is a primer on the differences, advantages and disadvantages of at-fault divorce compared to no-fault divorce.

What is at-fault divorce?

Many states differentiate between fault and no-fault divorce.

“It’s essentially asking the question, ‘Will the court take into account your actions when determining whether or not to grant your divorce,’” said Cordell & Cordell divorce attorney Miles Cottom. “Or alternatively, how will your actions play into the divorce process.”

Laws vary by state, but common reasons to seek at-fault divorce include cruelty, adultery, desertion and imprisonment.

What is the advantage of at-fault divorce?

There are a few advantages in seeking a fault-based divorce.

First, some states require couples to go through long separation periods before granting a divorce. Illinois currently requires a two-year separation period, although that will shorten to six months under the new law. Arkansas requires 18 months without cohabitation.

This can be frustrating when you’re clearly in a broken marriage and want to move on to the next chapter of your life.

The logic behind separation periods is that it cuts down on the number of impulsive divorces and encourages couples to work out their differences.

On the surface, this seems like a strategy to strengthen families. After all, the harmful effects divorce can have on children are well-documented.

However, research suggests that those negative outcomes have more to do with the amount of conflict children are exposed to rather than the breakup itself. So forcing parents to stay in broken marriages might not be in the kids’ best interest.

Some states also offer additional incentive for seeking at-fault divorce by factoring in wrongdoing in the division of property and when calculating spousal maintenance.

If you can prove your spouse committed a major misdeed, it could lead to a bigger share of the marital pot.

What are the disadvantages of at-fault divorce?

For starters, trying to prove fault can be difficult, expensive and can quickly complicate the divorce process.

Hard evidence is needed to prove fault, which could require the use of a private investigator. Suddenly, your legal fees and other expenses will start to accumulate and there is no guarantee of any payoff.

If the defendant is found innocent, then the case is treated like a no-fault divorce. All that time you spent trying to prove your spouse was in the wrong was for nothing and all you did was delay the separation period.

Finally, attempting to prove fault is one of the easiest was to ensure that a breakup turns bitter. Your spouse probably won’t be pleased that you spent so much time and effort pointing fingers to try proving she was in the wrong.

That makes it highly unlikely that your divorce will be amicable, increases the likelihood that a judge will be needed to reach a settlement, and potentially makes co-parenting even more challenging if kids are involved since you’re probably no longer on good terms with your ex.

If you truly believe you have proof of marital misconduct and your state still grants at-fault divorce, then it might be worth pursuing. But you should weigh all the potential outcomes and consult with your attorney before determining whether or not to pursue such a case.