Most states allow spouses seeking a divorce to allege fault in the breakup of the marriage as a basis for the divorce. Alleging the other spouse’s fault—rather than seeking the divorce on no-fault grounds (irreconcilable differences or incompatibility, making the marriage unsustainable)—is generally a basis for requesting the court make an uneven distribution of the marital or community property in favor of the spouse alleging the other’s spouse’s fault.

In states that allow a spouse to seek a divorce on fault grounds, the grounds that may be alleged vary from state to state, but generally include adultery, cruelty, conviction of a felony, family or domestic violence, abandonment, mental illness, and substance abuse (drugs and alcohol). Spouses may also seek a divorce on no-fault grounds in these states.

In no-fault states, a spouse is not allowed to allege fault as grounds for the divorce, and the court is not allowed to consider fault in dividing the marital or community property—but allegations of fault may be considered for other purposes, such as spousal support and child custody. No-fault states include California, Colorado, Florida, Hawaii, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, Oregon, Washington, and Wisconsin. And in some states “incurable insanity” is a no-fault ground for divorce.

The grounds on which a spouse may seek a divorce (fault or no-fault) are usually located in a state’s statutes—often in the family code or domestic relations code.

In West Virginia (WV), spouses seeking a divorce have the option to file on either fault or no-fault grounds. No-fault divorce is based on the principle of irreconcilable differences, which means that the marriage is broken beyond repair and there is no reasonable hope of reconciliation. On the other hand, fault-based divorces require the alleging spouse to prove that the other spouse's misconduct led to the breakdown of the marriage. Grounds for a fault-based divorce in WV include adultery, cruelty or violence, desertion for at least six months, addiction to drugs or alcohol, conviction of a crime, and incurable insanity. When a divorce is filed on fault grounds, the court may consider the misconduct in the division of marital property, potentially leading to an uneven distribution in favor of the non-faulting spouse. Additionally, fault may be relevant in determining spousal support and child custody arrangements. It's important to consult with an attorney to understand how these laws may apply to an individual's specific situation.