Either spouse can get a no-fault divorce in every state on grounds like "irreconcilable differences." A handful of states permit "fault" divorces, based on one spouse's bad behavior, which can include abuse of alcohol. So if your spouse abuses alcohol and you live in one of those states, you may want to ask for a fault divorce. Or you may not.
Fault vs. No-Fault Divorce
For many years, one spouse could only end a marriage by proving that the other spouse engaged in truly bad or unacceptable behavior, such as infidelity or insanity. That rule has changed in recent years. Today, all states permit one spouse to divorce the other without a statement of fault, using grounds such as an irreparable breakdown of the marriage. Given the availability of no-fault divorce, either spouse can obtain a divorce, whether the other spouse wants one or not.
But 11 states and the District of Columbia still allow you to plead and prove fault in a divorce. The benefits for doing so depend on the state. A fault divorce may be obtained without the long waiting period required in some states for no-fault divorces. In other states, a spouse can get more alimony if the marriage ended because of the other spouse's bad behavior.
New Jersey is a typical state in this regard. It permits no-fault divorce on the grounds of irreconcilable differences suffered for at least six months or if the couple have lived apart for at least 18 months. But in New Jersey, you can also sue for divorce based on the other spouse's fault, including adultery, abandonment, physical or mental cruelty, or drug or alcohol abuse for at least a year. In a fault divorce, the court divides the property between the spouses the same as a no-fault divorce, but the spouse winning a fault divorce can get more alimony than a fault divorce in states like New Jersey. In other states, a fault divorce can also change the division of assets.
Divorcing an Alcoholic
Alcohol abuse that continues for at least a year is possible grounds for a fault divorce in some states. Habitual substance abuse is often permitted as grounds for a fault divorce, and it can lead to other grounds, such as infidelity or physical cruelty.
But consult an attorney before opting to sue for a fault divorce based on substance abuse. These fault grounds for divorce have been around for many years, and some unusual rules have developed. For example, if a spouse knows before marriage that the person he is marrying has a substance abuse problem, he cannot use this as grounds for divorce.
And if you do want to press ahead, get ready for a rough ride. You'll have to prove the habitual nature of the issue, since mere occasional drunkenness or regular moderate drinking is probably not going to be enough. In the same manner, occasional weekend binges or "functional" alcoholism (in which the spouse successfully holds down a job despite continual drinking) might not suffice either. Unless you have objective evidence, such as a handful of DUI convictions or stints at a treatment facility, it will probably come down to a "he says-she says" type of trial.
Child Custody Matters
Obviously, substance abuse will be an important issue when the court is awarding custody of minor children. However, you don't have to bring a fault divorce based on alcoholism to raise it during custody hearings. While a spouse who drinks moderately won’t get eliminated from seeking custody, family law courts will take a close look at any substance abuse issue that might impact parenting.
With a Master's in English, a Master of Fine Arts in Creative Writing, and J.D. from U.C. Berkeley's law school, Teo Spengler is up on education. She splits her home time between San Francisco and France. A perpetual student and frequent teacher, she is also a writer and world traveler. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Arizona Central, Fairmont Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites.