FAQ: Divorce

Grounds for Divorce

The grounds for divorce that are available to you will depend on the laws of your state. Most states have fault as well as no-fault grounds for divorce. In a traditional (fault) divorce the person seeking the divorce must show that their spouse did something wrong. Under the more modern concept of "no-fault" divorces, the party does not need to prove misconduct in order to get a divorce.

Traditional grounds for fault-based divorce include:

• Adultery - Cheating on your spouse
• Desertion - Your spouse left without providing for you and/or the kids and without letting you know how to contact them. There is usually an amount of time that the person must be gone in order to label the absence "desertion"
• Confinement - Your spouse has been or will be in prison for a certain period
• Inability to engage in intercourse - In order to prevail on this grounds for a divorce you must usually show that the person had the inability to have sex prior to the marriage and that they did not disclose it
• Extreme Cruelty - This can be a single act of mental or physical cruelty or ongoing acts of cruelty

The exact definition of what would constitute "adultery," or any of the other grounds for divorce will depend on the laws in your state and what the courts in your state have decided in similar cases. These grounds for divorce are not available in all states. Some states do not even allow fault-based divorces. Other states will allow divorces on different grounds.

Why would I choose a fault-based divorce?

If you have a choice between a divorce based on one of the above grounds, and possibly other grounds, versus a no-fault divorce there are a few reasons why you might chose a fault-based divorce. In some cases, the way that the marital property is divided will be affected by the grounds for divorce. It is possible that in an equitable property state (where the courts divide the property according to what is "fair") the court would favor the party that is innocent rather than the party who is at fault. The reason for the divorce could also influence decisions about custody. If the ground for the divorce was extreme cruelty, this could influence a judge when he or she is trying to determine what is in the best interest of the child. Of course, giving a false reason for a divorce could also affect a custody decision by reflecting poorly on the character of the person who filed.

One of the major reasons why people choose a fault divorce is that it can sometimes be concluded more quickly than a no-fault divorce. That may appear unusual since a no-fault divorce cannot effectively be contested. After all, you are not accusing the other person of a specific act. The reason why it is sometimes faster is that states may require the couple to be physically separated before they are given a no-fault divorce. The time period that couples are expected to live apart varies from state to state.

Disadvantages of Fault-Based Divorces

There are some significant disadvantages to a fault-based divorce. If you are going to make an accusation like adultery or extreme cruelty, you have to be prepared to prove it in court. You will need to find evidence to support the case. The person against whom the accusation is made will have many reasons to fight the accusation including avoiding harm to their reputation and interests (custody, alimony awards, property distribution).

A divorce based on one of these grounds could take longer to resolve in the courts because there are many defenses, which may be available to the accused spouse. The person who files will have the burden of proving their accusation, but the person accused of being at fault can present evidence that they are not at fault. They can argue that the other person participated in the misconduct, encouraged it, or condoned it. Generally, these arguments do not succeed because the courts are usually not interested in determining who is at fault. Generally, courts do not want to force people to stay together if one person clearly wants a divorce. Each party, however, must still get a chance to make their case.

Conclusion

The modern trend is for states to move towards no-fault divorces. There are currently 15 states that only allow no-fault divorces. Most states have a no-fault option in addition to the traditional grounds for divorce. Abundant judicial resources are required to decide who is to blame when a marriage falls apart. In many cases, a long, contentious battle in the courts is a losing matter for everyone involved- the couple and the courts.

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