FREQUENTLY ASKED QUESTIONS

What is a "'no fault" divorce?

"No fault" divorce describes any divorce where the spouse suing for divorce does not have to prove that the other spouse did something wrong. All states allow divorces regardless of who is “at fault."

To get a no fault divorce, one spouse must simply state a reason recognized by the state. In most states, it's enough to declare that the couple cannot get along (this goes by such names as "incompatibility," "irreconcilable differences" or "irremediable breakdown of the marriage"). In nearly a dozen states, however, the couple must live apart for a period of months or even years in order to obtain a no fault divorce.

Is a no fault divorce the only option even when there has been substantial wrongdoing?

In 15 states the answer is ”yes”. The other states allow a spouse to select either a no fault divorce or a fault divorce

Why choose a fault divorce?
Some people don't want to wait out the period of separation required by state law for a no fault divorce. In some states, a spouse who proves the other's (partner?) fault may receive a greater share of the marital property or more alimony.

The traditional fault grounds are:

cruelty (inflicting unnecessary emotional or physical pain) most frequently used

adultery

desertion for a specified length of time

confinement in prison for a set number of years

physical inability to engage in sexual intercourse (if not disclosed before marriage).

Can a spouse successfully prevent a court from granting a divorce?

One spouse cannot stop a no fault divorce. Objecting to the other spouse's request for divorce is itself an irreconcilable difference that would justify the divorce. A spouse can prevent a fault divorce, however, by convincing the court that he or she is not at fault. In addition, several other defenses to a divorce may be possible:

Collusion. If a state requires a waiting period for no fault divorces and a couple doesn't want to wait, they might pretend that one of them was at fault in order to manufacture grounds for the divorce. This is collusion because they are plotting to mislead the judge. If, before the divorce, one spouse no longer wants a divorce, he could raise collusion as a defense.
Condonation. Condonation is someone's approval of another's activities. For example, a wife who does not object to her husband's adultery may be said to condone it. If the wife sues her husband for divorce, claiming he has committed adultery, the husband may argue as a defense that she condoned his behavior.
Connivance. Connivance is the setting up of a situation so that the other person commits a wrongdoing. For example, a wife who invites her husband's lover to the house and then leaves for the weekend may be said to have connived his adultery. If the wife sues her husband for divorce, claiming he has committed adultery, the husband may argue as a defense that she connived, that is, set up his actions.
Provocation. Provocation is the inciting of another to do a certain act. If a spouse suing for divorce claims that the other spouse abandoned her, her spouse might defend the suit on the ground that she provoked the abandonment.
Think twice before you raise a defense to a fault divorce. These defenses are rarely used--for a couple of very practical reasons. First, proving a defense may require witnesses and involve a lot of time and expense. Second, your efforts will likely come to nothing. Chances are good that a court will eventually grant the divorce, because there is a strong public policy against forcing people to stay married when they don't wish to be. Your money and energy may be better spent elsewhere--say, on paying mutual debt or saving for the children's college education.


Disclaimer **
This publication and the information included in it are not intended to serve as a substitute for consultation with an attorney. Specific legal issues, concerns and conditions always require the advice of appropriate legal professionals.