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 South Dakota, spouses seeking a divorce have the option to file on either fault or no-fault grounds. No-fault divorce is based on irreconcilable differences, indicating that the marriage is irretrievably broken. However, South Dakota law also permits divorce on fault grounds, which include adultery, extreme cruelty, willful desertion, willful neglect, habitual intemperance (alcoholism), and conviction of a felony. The state's statutes outline these grounds for divorce, and when fault is alleged, it can influence the court's decisions regarding the division of marital property. While no-fault divorces do not require proof of misconduct, alleging fault may lead to an uneven distribution of marital assets in favor of the non-faulting spouse. Additionally, fault may be considered when determining spousal support and child custody arrangements. It's important to note that the specifics of how fault impacts the division of property and other divorce-related issues can vary, and an attorney can provide guidance tailored to an individual's circumstances.