Roughly two-thirds of U.S. states are still states with at-fault divorce, meaning a spouse can file by proving specific misconduct instead of simply citing irreconcilable differences. About 35 states keep fault grounds on the books alongside their no-fault option.1LII / Legal Information Institute. Fault Divorce | Wex | US Law The remaining states have abolished fault entirely. Which category your state falls into shapes your options on alimony, property division, custody, and how long the divorce takes.
How to Tell if Your State Still Allows Fault
The quickest check is the no-fault-only list. If your state isn’t on it, fault grounds almost certainly remain available to you.1LII / Legal Information Institute. Fault Divorce | Wex | US Law These states grant divorces only on no-fault grounds like irreconcilable differences or an irretrievable breakdown of the marriage:
- California
- Colorado
- Florida
- Hawaii
- Iowa
- Kentucky
- Michigan
- Minnesota
- Missouri
- Montana
- Nebraska
- New Mexico
- Oregon
- Washington
- Wisconsin
A few other states sit near the line depending on how borderline grounds are categorized, and divorce statutes change often enough that it’s worth confirming the current rule with a local attorney before you file.
Grounds a Fault State Will Accept
The specific grounds vary, but the same categories show up across most fault jurisdictions.1LII / Legal Information Institute. Fault Divorce | Wex | US Law
Adultery
Adultery is the most widely recognized ground and requires more than suspicion. Courts expect tangible evidence of the extramarital relationship, and some states hold adultery claims to a higher standard of proof than other grounds. Because adultery can directly affect alimony eligibility, it’s often one of the grounds worth the extra effort to prove.
Cruelty
Cruelty covers both physical violence and patterns of behavior causing severe emotional harm. The definition is intentionally broad, letting judges weigh anything from domestic violence to sustained verbal abuse or controlling behavior that endangers the filing spouse’s well-being.
Desertion
Desertion requires showing that one spouse left the marital home without justification, intended to stay away permanently, and did so against the other spouse’s wishes.2Legal Information Institute. Desertion | Wex Most states require the departure to have lasted a minimum period, often one year, before it qualifies.
Felony Conviction
A felony conviction with a prison sentence of a set length is a ground in most fault states. The minimum sentence varies but is commonly one to three years.
Substance Abuse, Incurable Insanity, and Impotence
Several states allow divorce based on habitual drug or alcohol abuse. A smaller number recognize incurable insanity, which typically requires proof that the affected spouse has been confined to a mental health facility for a consecutive period, often three or more years, with medical testimony that the condition is permanent. Impotence at the time of the marriage is another ground in some states.1LII / Legal Information Institute. Fault Divorce | Wex | US Law
What Filing on Fault Actually Changes
Courts in fault states can consider misconduct when dividing property, setting alimony, and making custody decisions. None of these outcomes are automatic, but fault gives the wronged spouse arguments that aren’t available in a no-fault case.1LII / Legal Information Institute. Fault Divorce | Wex | US Law
Property Division
Most states divide marital property under equitable distribution, meaning the split is what the court considers fair rather than a mechanical 50/50. A finding of fault can tip the scale. If one spouse burned through marital funds on an affair or an addiction, the court may award a larger share of the remaining assets to the other spouse. This is called dissipation of assets, and it directly compensates the wronged party for money the at-fault spouse wasted.3American Bar Association. Separating Property
Alimony
Fault often hits alimony harder than it hits property. Many states consider misconduct when setting the amount and duration of spousal support. Some go further. In Georgia, a spouse whose adultery or desertion caused the divorce is barred from receiving alimony entirely.4Justia. Alimony Laws and Forms: 50-State Survey Elsewhere the bar is less absolute, but a judge can still raise or lower alimony based on who was at fault.
Child Custody
Courts decide custody using a “best interests of the child” standard, which weighs factors like each parent’s home environment, financial stability, and mental health.5Legal Information Institute. Best Interests of the Child Marital misconduct on its own does not automatically cost a parent custody. But misconduct that directly affects the child, like domestic violence, habitual substance abuse, or a felony conviction, is highly relevant to parental fitness and can result in restricted custody or supervised visitation.
Skipping the Separation Waiting Period
One of the most practical reasons to file on fault is speed. Many states require couples seeking a no-fault divorce to live apart for a mandatory separation period, from several months to over a year, before the court will finalize the divorce.6Justia. No Fault vs. Fault Divorce Under State Laws Filing on fault grounds can let you skip or shorten that period, because the misconduct replaces separation as evidence that the marriage has broken down.
Faster filing doesn’t always mean faster resolution, though. Fault cases are contested by nature, and proving misconduct takes time. If your spouse fights the allegations, the case can run well past the point where a no-fault separation would have expired. The waiting-period advantage works best when the evidence is strong and the other side is unlikely to put up a serious defense.
Defenses the Other Spouse Can Raise
The accused spouse is not without options. Fault-based divorces come with established defenses, and if one sticks, the court can deny the divorce on fault grounds.
Condonation means the filing spouse already forgave the misconduct. If you learned about your spouse’s affair, reconciled, and resumed the marriage, a court can treat that as forgiveness that bars you from later using the affair as a ground.7LII / Legal Information Institute. Condonation The forgiveness is conditional. New misconduct or a repeat of the same offense can undo it.
Recrimination applies when both spouses are guilty of conduct that would qualify as a ground. Under the traditional rule, when both sides are at fault, neither gets a fault divorce. Most states that still recognize recrimination have softened it, often giving the judge discretion to grant the divorce to the less culpable spouse.
Connivance is the rule that you can’t complain about wrongdoing you consented to. If a spouse facilitated or encouraged the other’s adultery and then tried to use that adultery as a ground, the court can dismiss the claim.8LII / Legal Information Institute. Connivance | Wex | US Law Passive awareness usually isn’t enough; the accused spouse has to show the filing spouse actually wanted the misconduct to happen.
Provocation argues that the filing spouse’s own behavior pushed the accused spouse into the misconduct. For example, a spouse subjected to sustained cruelty might claim the abuse provoked the desertion. It’s harder to win than condonation or connivance, but it can undercut the filing spouse’s claim to be the innocent party.
Proving Fault and What It Costs
The filing spouse carries the burden of proof. For most grounds the standard is a preponderance of the evidence, though some states hold adultery to a higher bar. Financial records, bank statements, and credit card records can support both adultery and dissipation claims. In cruelty cases, police reports, medical records, and protective orders carry weight. Witness testimony from people with firsthand knowledge is common, and some filers hire a private investigator to gather surveillance evidence.
How you handle digital evidence matters. Federal law prohibits using the contents of any communication intercepted in violation of wiretapping rules, including in divorce proceedings.9Office of the Law Revision Counsel. 18 US Code 2515 – Prohibition of Use as Evidence of Intercepted Wire or Oral Communications Secretly recording your spouse’s calls or hacking a password-protected account can get the evidence thrown out and expose you to criminal liability under the Electronic Communications Privacy Act. Safer sources are screenshots of messages sent to you, publicly available social media posts, and records produced through formal discovery once the case is filed.
All of this costs money. An uncontested no-fault divorce can wrap up in a few weeks to a few months. A contested fault case routinely takes six months to a year, and can stretch to several years if the other spouse fights back hard. Experienced family law attorneys typically charge $300 or more per hour. Private investigators run $50 to $150 per hour plus expenses, with total investigation costs ranging from a few hundred to several thousand dollars. Psychiatric evaluations for custody disputes, expert witnesses, and extra court filings add up on top of that. Before you choose the fault route, weigh the potential advantages against the near-certainty that you’ll spend significantly more in legal fees than a no-fault filing would require.
A Note on Covenant Marriages
Three states, Louisiana, Arizona, and Arkansas, offer a separate category called a covenant marriage. Couples who opt in agree to premarital counseling and accept stricter rules for ending the marriage. A covenant marriage cannot be dissolved through a simple no-fault filing. The spouse seeking the divorce must prove a fault ground, typically adultery, a felony conviction, abandonment for at least one year, physical or sexual abuse, or habitual substance abuse.10Arizona Legislature. Arizona Code Title 25 – Dissolution of a Covenant Marriage; Grounds The only no-fault-like path out is living separate and apart for an extended period, usually one to two years, before filing. Covenant marriages are uncommon even in the states that offer them, but if you’re in one, fault grounds are essentially your only realistic exit.