Once upon a time, most states, including Utah, required proof of fault by one spouse in order to grant a divorce. The requirement of fault to grant a divorce served the public policy of preserving marriage and preventing impulsive divorces. Unfortunately, the fault requirement also forced some couples to stay together when it would have served them (and their children) better to end the marriage. Today, all 50 states allow some form of no-fault divorce, in which neither spouse must allege or prove wrongdoing by the other in order to terminate their marriage.
However, as of this writing, only seventeen states are true no-fault states, in which there is not even an option to file for divorce on fault grounds. In the remaining states, including Utah, spouses have to choose between filing for divorce on fault grounds or pursuing a no-fault divorce. If no-fault divorce is available, is there an advantage to filing for a fault-based divorce? As with so many questions in the law, it depends.
Getting a No-Fault Divorce in Utah
Since 1987, Utah couples have been able to get a divorce by alleging “irreconcilable differences” — in other words, the marriage isn’t working, and the couple isn’t going to be able to make it work. There is no waiting period to file for divorce based on irreconcilable differences.
Utah Code Section 81-4-502(2) also provides that a couple who has lived under a decree of separate maintenance (legal separation) of any state for three years may also be granted a Utah divorce.
The advantages of a no-fault divorce are many. These divorces are typically quicker, easier to prove, less contentious, and often less expensive because there is less fighting and no need to gather and present evidence of fault. With that said, there are still valid reasons to consider a fault-based divorce.
Choosing no-fault grounds doesn’t guarantee an easy case — but pairing it with full agreement on terms can qualify you for an uncontested divorce.
How Do I Get a Fault-Based Divorce in Utah (and Why?)
The grounds for fault-based divorce in Utah are:
- Adultery committed after the marriage
- Impotence at the time of the marriage
- Desertion for more than a year
- One spouse intentionally neglects to provide for the other’s basic support
- Chronic drug or alcohol abuse
- Physical or emotional abuse
- Conviction of a felony
- Incurable insanity
Some of these grounds are relatively simple to prove, others more difficult. It may not be necessary for a spouse to prove one of the permissible fault grounds to get a divorce. But divorce is about more than simply ending a marriage; the divorce decree sets the terms for what property and support the spouses will take from the marriage and how they will co-parent after the divorce. The concept of fault can be highly relevant to those determinations.
Why You Should Consider Filing for Divorce on Fault Grounds
You Need Alimony (Or Want to Avoid Paying It)
Utah Code Section 81-4-502(2) specifies that a court can consider fault in deciding whether to award alimony, and how much alimony to award. If your spouse was at fault for the breakdown of your marriage, a finding of fault will weigh in your favor in an alimony determination. If you are the payor, you may not have to pay as much; if you are the recipient of alimony, you may receive more because of your spouse’s fault.
Your Spouse Wasted Marital Assets
Under Utah law, marital property is usually divided equally in a divorce. But if you and your spouse had marital assets worth $500,000, and your spouse spent $100,000 on gifts for an affair partner, there is only $400,000 in assets left to divide. Proving fault in the divorce gives the judge the authority to order a division of property that is fair and equitable, even if not necessarily equal. In a case like this, a judge might award the wronged spouse $250,000 in marital property and the at-fault spouse $150,000, in recognition of the fact that the at-fault spouse had already effectively “received” the other $100,000.
Your Spouse’s Actions Could Endanger Your Children
Child custody concerns are another reason to consider filing for divorce on fault grounds. Some types of fault that lead to the end of a marriage can also put children in harm’s way. For instance, if your spouse has a serious substance abuse problem, a history of domestic abuse, or severe and chronic mental illness, those could have an impact on his or her ability to safely and effectively care for the minor children you share. By proving and alleging fault in your divorce, you lay a foundation for the judge to grant you primary responsibility for your children or to order that the other spouse only spend time with the children when supervised.
In any case, the potential benefits of filing for a Utah divorce on fault grounds must be balanced against the many advantages of no-fault divorce.
Contact an Experienced Utah Divorce Attorney
If you are weighing fault vs. no-fault divorce in Utah, Ashley Wood Law, P.C. can help you evaluate your options. Contact us online at contact@ashleywoodlaw.com or call (801) 459-3499 to schedule a consultation with an experienced Utah divorce attorney.