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In a fault divorce, one party must prove to the court that she has grounds for divorce because of the other party's behavior. Depending on the jurisdiction, the significance of a fault divorce may pertain only to divorce grounds and have no effect on the financial or custody settlement. In other places, proving fault in a divorce may have a significant effect on how a couple's finances are divided and the amount of time that each spouse can spend with his or her children. In many cases, a fault divorce can be much more costly in terms of time, money, and personal stress.
Many jurisdictions require or allow spouses to request a divorce because the other spouse has done something that makes it difficult, if not impossible, for the divorcing spouse to remain married to him. These jurisdictions typically define by law the possible reasons, or grounds, for divorce. Common grounds for divorce include adultery, abuse, and desertion. Incarceration, severe mental illness, and substance abuse are other potential grounds. In a fault divorce, one spouse alleges in his divorce papers that the other spouse is guilty of such behavior, thus giving the filing spouse fault grounds for divorce.
In some cases, the spouse being accused of this behavior will not contest the charges and will agree to allow the divorce go forward. The spouse has the right to contest these charges, which may result in the case going to trial. When this happens, the situation can become particularly ugly, as the divorcing partner must then attempt to prove in court that his spouse has indeed engaged in such behavior. In some cases, both spouses may allege bad behavior, which can result in a lengthy and expensive trial. If the judge is convinced that a spouse has grounds for divorce, the judge can then proceed to grant the divorce. If the divorcing spouse has not proved her case, the divorce may not be granted, or the spouse may need to establish other grounds for divorce.
Just because a spouse wins a fault divorce against the other does not necessarily mean that the spouse guilty of misconduct will be penalized in other aspects of the divorce. In some places, a person's behavior during the marriage may give the other spouse grounds for divorce but does not affect the way the particulars of the divorce will be settled. This is not true everywhere, and a judge may decide to award child custody or divide finances in favor of the spouse who proved fault divorce grounds against the other.