Does fault still exist?
Yes, 33 states still have fault grounds for divorce. They are Alabama, Alaska, Arkansas, Connecticut, Delaware, Georgia, Idaho, Illinois, Kansas, Louisiana, Maine, Maryland, Massachusetts, Mississippi, Missouri, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia and West Virginia. Seventeen states -- Arizona, California, Colorado, Florida, Hawaii, Indiana, Iowa, Kentucky, Michigan, Minnesota, Montana, Nebraska, Nevada, Oregon, Washington, Wisconsin and Wyoming -- and the District of Columbia permit only no-fault.
However, every state offers no-fault as an option. States which have fault divorce decided to leave it in place and enact no-fault as yet another option.
In the old days someone who wanted out of a marriage had to prove the other spouse at fault for causing the marriage to fail. Thus, the idea of fault implied a moral responsibility for failure. Or, even when both of them were equally responsible and each wanted to escape a failed marriage, someone had to "take the fall," that is, be at fault.
To this end, fault jurisdictions offer some or all of nine fault grounds, with the first -- adultery -- being the most common because it was seen as most reprehensible. As mentioned, the exact shade of meaning varies with the jurisdiction, as do specific circumstances of the fault. Adultery means sexual contact with someone other than the spouse, and this includes homosexual contact. This sometimes led to a third party being named as a co-respondent or co-defendant in the action, who could elect to join a civil action against the plaintiff’s allegations in the divorce complaint.
Other fault grounds include deviant sexual conduct, a kind of catchall into which some jurisdictions include homosexual adultery; extreme cruelty or cruel and inhuman treatment, which can be "as innocuous and benign as a pattern of conduct resulting in repeated annoyance or just about anything that makes it unreasonable or unhealthy for the parties to continue to cohabit as spouses"; habitual drunkenness, usually for more than one year; mental illness, usually with institutionalization for a year or more;
sexual desertion, which means carnal abandonment; drug addiction, which means nonmedical use of narcotics; and nonsupport.
Fault grounds in various jurisdictions may involve durations of episodes and require enumeration and qualification of intensity.
When Rufus and Rhonda ended their marriage with fault grounds in the bad old days, punishment for a moral failing identified the villain, particularly when one of them waved the red flag of adultery. Punishment implied guilt, and someone had to pay for it.
Today, even in those states that still have fault grounds, fault is not used as punishment.