Fault and No Fault Divorce

There are two (2) categories of divorces:  Fault & No-Fault.  Every state has a No-Fault Divorce provision.  Grounds for a divorce are legal claims or reasons for a divorce; it is a cause of action to seek a divorce.  The relief a filing party seeks when filing for divorce is dissolution of the marriage.  Thus, a filing party must prove their cause of action to be entitled to relief, even when filing under the No-Fault provision.  In actions filing for fault provisions, there must be one person at fault and an innocent party in order to obtain the dissolution of marriage.

Fault based grounds consists of what is known as the traditional reasons for a party to file for divorce.  First, Cruelty – Cruelty originally consisted of cases of physical abuse but later extended reach to mental abuse.  To prove a claim, a filing party must demonstrate the cruelty to be a course of repeated conduct and not mere sporadic events.  States that still have fault-based regimes of some sort will typically include some form of cruelty ground.  Physical harm may include weight loss or nervousness, but these symptoms will need to occur on more than one occasion.   Mental cruelty, also known as habitually intemperate, is enough for a legal separation. Being habitually intemperate may include incidents of cursing and saying one does not love spouse or child.  Second, traditional ground for divorce is adultery.  Circumstantial evidence and assumptions can be enough to prove adultery as a cause of action for a divorce.  Other ways to prove adultery is a wife bearing a child when husband is impotent or sterile.  There is a split among the states regarding whether same-sex sexual conduct constitutes adultery. Third, Abandonment – Abandonment of leaving one’s spouse having no intent to end the marriage is a ground for divorce.  Grounds for abandonment also extend to constructive desertion such as violence and in some states failure to engage in marital relations (i.e. having unprotected sexual intercourse).  Other states have statutory provisions including incurable impotence, conviction of a crime or long jail sentence, habitual drunkenness or drug abuse, and spouse missing or a requisite period of time being presumed dead.

Legal defenses a spouse opposing the divorce may utilize:  the filing party is also at fault, entrapment, filing party forgave spouse, fraud, and insanity.  In true no-fault states these defenses have been abolished.

No-fault divorces have two requirements:  first, there must be irreconcilable differences between the spouses which mean there is no reasonable prospect of reconciliation, and secondly a requisite period of separation must be met.  A filing party must be a resident of the state in most states filing party must have been domiciled in a state for at least 90 days.  To prove a marriage has irreconcilable differences, the filing party’s cause of action is an irretrievable breakdown of the marriage.  The court will grant a filing party a legal separation on this ground if there is no objection by the other spouse.  If the divorce is non-consensual, to prove the marriage is irretrievable broken some states require a 30 day counseling session to be done with both spouses.  Every state has some no-fault statute, 14 states have a pure no-fault statute where any fault based claim is obsolete, and 33 states have a hybrid version of fault & no-fault statutes allowing parties to choose between the two.


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