What is a "no fault" divorce?

"No fault" divorce describes any divorce where the spouse asking for a divorce does not have to prove that the other spouse did something wrong. All states allow no fault divorces.

To get a no fault divorce, one spouse must simply state a reason for the divorce that is recognized by the state. In most states, it's enough to declare that the couple cannot get along (this reason goes by such names as "incompatibility," "irreconcilable differences," or "irremediable breakdown of the marriage").

In some states, however, the couple must live apart for a period of months or years before they can obtain a no fault divorce.

What is a "fault" divorce?

A fault divorce may be granted when the required grounds are present and at least one spouse asks that the divorce be granted on the grounds of fault. Only some states allow fault divorces.

The traditional fault grounds are:

• cruelty (inflicting unnecessary emotional or physical pain) -- this is the most frequently used ground for divorce
• adultery
• desertion for a specified length of time
• confinement in prison for a set number of years, and
• physical inability to engage in sexual intercourse, if it was not disclosed before marriage.

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

What if both spouses are at fault? When both parties have shown grounds for divorce, the court will grant a divorce to the spouse who is least at fault under a doctrine called "comparative rectitude." Years ago, when both parties were at fault, neither was entitled to a divorce. The absurdity of this result gave rise to the concept of comparative rectitude.

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:

• 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.
  
  
• Collusion. If a couple lives in a state where no fault divorce requires that the couple separate for a long time and the couple doesn't want to wait, they might pretend that one of them was at fault in order to manufacture a ground for divorce. This is called collusion, because they are cooperating in order to mislead the judge. If one spouse decides he no longer wants a divorce (before the divorce is granted), he could raise the collusion as a defense.
  
  

But these defenses are rarely used -- for a couple of 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.

Copyright 2007 Nolo

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