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 Delaware, spouses seeking a divorce can file on either fault or no-fault grounds. No-fault divorce is based on the assertion of irretrievable breakdown of the marriage, which includes separation, incompatibility, or irreconcilable differences that make the continuation of the marriage impossible. Fault-based divorces, on the other hand, can be sought for reasons such as adultery, cruelty, willful desertion, habitual drunkenness, and other grounds as specified by Delaware law. When it comes to the division of marital property, Delaware courts generally follow an equitable distribution approach, meaning the property is divided in a way that is fair but not necessarily equal. While fault grounds can be considered in the division of property, they are just one of many factors the court may take into account. Additionally, allegations of fault may play a role in determinations of alimony and child custody. It is important for individuals going through a divorce in Delaware to consult with an attorney to understand how the specifics of their situation may affect the legal proceedings and outcomes.