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 New Jersey, spouses seeking a divorce have the option to file on either fault or no-fault grounds. No-fault divorce can be sought on the basis of irreconcilable differences, which do not require the spouses to live apart for any specific period before filing. Alternatively, spouses can file for a no-fault divorce after living separately for at least 18 consecutive months, indicating that the marriage is irretrievably broken. Fault grounds for divorce in New Jersey include adultery, desertion, extreme cruelty, substance abuse, institutionalization for mental illness, imprisonment, and deviant sexual conduct without consent. While New Jersey allows for fault-based divorces, the court may consider fault when dividing marital property, although it is not the sole factor. The division of property is based on equitable distribution, which aims to be fair but not necessarily equal. Fault may also be considered in determinations of alimony and child custody. The specific statutes governing divorce in New Jersey can be found in the New Jersey Statutes Annotated (N.J.S.A.), particularly within Title 2A:34-2 for grounds for divorce.