Filing for a divorce is not as simple as walking to the courthouse and declaring that you no longer wish to be married to your spouse. Instead, you must present the court with a legal justification for the breakdown of your marriage. Your divorce grounds can either be a no-fault divorce or a fault divorce. Please note that in some states, you can only file a no-fault divorce as they have scraped the fault divorce grounds. We will cover what both of these divorces entail and what you should consider in your case.
Common Grounds for Fault Divorces
In the United States, about two-thirds of the states allow couples to use fault as the motivation behind the divorce. Even so, more states are now favoring no-fault divorces in the hope of helping couples air less of their dirt in public. Not only do such divorces take away the burden of proof, but they are also faster and enable the couple to move on and heal. However, where a couple wants to finalize the divorce without waiting for a prescribed amount of time, a divorce based on fault grounds is much faster. Additionally, some couples choose this route for the benefit of:
- Faster Divorce Processes: If you can prove that your spouse was involved in misconduct, you can use this as grounds to get a divorce granted, enabling you to walk away from the marriage. Even if your partner tries to block the divorce, your proof will enable the court to proceed with the divorce.
- Property Division: Some couples use the fault divorce to get a bigger cut of the marital wealth. Take the example of where your partner used your money to fund extra-marital affairs, you can get more money after the divorce proceedings. You can use their misappropriation as grounds to get a bigger share.
- Alimony Awards: In some states, you can reduce the amount of alimony paid to a cheating spouse, provided you can prove that you walked out of the marriage after finding out about the affair.
Couples who choose such divorces argue that one spouse did something that ultimately led to the breakdown of the marriage. To do so, you must provide proof of the misconduct and present this to the court as the grounds for your divorce. It’s no wonder private eyes are getting so much work these days! Alternatively, you can get a first-hand witness to give an account of the misconduct shown by your partner during your marriage. Their recollection can also serve as grounds for the awarding of a divorce.
Each state sets its acceptable grounds for such divorces, with the most common ones being:
Adultery
The law permits you to seek divorce if your spouse has had sexual relations with other people other than you during the duration of your marriage. To prove this infidelity, you must present evidence to the judge and show that the adultery prompted your divorce. Alternatively, you can state that your spouse cheated, and if they do not provide defense or state otherwise, the implication will be they were unfaithful. Please note that adultery does not necessarily constitute sexual intercourse, but instead, can also hold with everything else in between. Thus, if you have evidence, you can use this as your divorce grounds.
Cruelty
Did you know that you can divorce your partner based on emotional and/ or physical cruelty? All you need to do is prove that your spouse intentionally caused you harm without any provocation on your part. Take an example of where your spouse often screams at you and goes into fits of rage. If this behavior is repetitive and has caused you harm, you can initiate divorce proceedings based on cruelty grounds. Other acts include violence, insults, threats of violence, public berating, blatant disrespect, financial torture, and personal attacks. Please note that one-off incidences are not grounds enough for a divorce.
Desertion or Abandonment
Spouses leave their houses for different reasons. If your partner has to leave for employment or other positive reasons, you cannot come after them for desertion. Take the example of a spouse who has to serve the military. Even if they take years to come back, this does not amount to desertion. Desertion as a divorce ground only applies if your spouse leaves the marital home without your consent and continues living outside the home uninterrupted for an extended period. For example, if your spouse up and leaves for two years without asking your permission and starts living as if they are single, you can file for desertion. Additionally, you can claim abandonment if your partner lives with you but does not accord you conjugal rights. Please note that abandonment has its limits. If you force your spouse out of the home, you cannot claim desertion as your actions would have driven them out of the marital home.
Mental Illness
If your spouse has a mental illness that makes it hard for you to remain in the marriage, you can ask for a divorce. However, for the divorce to go through using the fault process, the mental illness must be incurable. You cannot take someone to court for divorce over a curable mental breakdown or something that does not interfere with the marriage. Please note that the permanency of the mental illness must have backing from a psychiatrist for it to serve as a ground for divorce.
Criminal Conviction and Imprisonment
Your partner being sentenced to serve time in prison can give you grounds for divorce. All you need to do is prove that they were found guilty of a criminal offense punishable by time in prison.
Are there other grounds for divorce?
Yes! While the cases mentioned above are the most common, you can get a fault divorce based on:
Non-Disclosure
Suppose your spouse kept some pertinent details from you before you got married, you can bring these up in court. Take an example of a heterosexual couple where one spouse discovers that the other has an LGBTQIA+ partner. The heterosexual spouse can file for a divorce based on this. Please note that the discovery of undisclosed matters such as these constitutes constructive or actual fraud, making the marriage voidable. However, if the spouse is willing to go ahead with the relationship after learning about the non-disclosure, the marriage can continue.
Cultural and Religious Differences
Suppose you and your spouse discover that you cannot keep up with your cultural or religious differences, you can opt to get a divorce. Take the example of where you realize that you cannot agree on how you want to raise your children because you have different religious beliefs. Or you cannot agree on what dietary patterns to follow because you have cultural differences. You can petition the court to get a divorce on these grounds, citing that the marriage has become hard on all parties. Also, couples can seek divorce if one spouse infects the other with a sexually transmitted disease.
Substance Abuse
Often, substance abuse accompanies the mistreatment of the other spouse. Couples can decide to go their separate ways on realizing that they do not feel safe or comfortable around their partners in the presence of drugs. It is more so where children are involved as one spouse may feel that having children in such an environment is not ideal. This lack of safety can serve as the grounds for a divorce and would hold up in a court of law.
Financial Distress
If your spouse is more financially stable than you and yet refuses to chip in and support you financially, you can file for divorce based on the grounds of neglect. Please note that you have to prove that you have suffered distress due to this as it interferes with access to basic needs.
What are the Defenses to Fault Divorces?
Your spouse will have the opportunity to defend their actions and can have the grounds dismissed by proving that they were not at fault. Additionally, if they can prove their innocence, they can have the divorce thrown out of court. Common defenses include:
Connivance
Your spouse can argue that you baited them into conducting the misconduct. Take an example where you encouraged them to have an affair with a third party then later filed for divorce on the grounds of adultery. While this can be a limited defense, some courts will still consider it, especially if your partner can prove you played a part in baiting them.
Condonation
If your spouse participated in misconduct and you were aware of it, forgave the misdeeds, and continued with the marriage, the court assumes that you condoned the bad behavior. Often, spouses brought to court over claims of adultery go with this defense. However, your partner must prove that you knew about their misdeeds, forgave them, and were willing to stay in the marriage.
Recrimination
Suppose you take your spouse to court over a fault that you have also committed, they can use recrimination as their defense. For example, if you used drugs at some point in the relationship and are taking them to court over substance abuse, you are just as guilty as they are. On this basis, if your partner can prove that you have used drugs, you will not have much of a case.
Provocation
Sometimes, a spouse can prove that they resulted to their faults owing to their spouse pushing them to their limits. Take an example of where you physically abused your spouse, leading them to move out of the matrimonial home. You cannot take them to court over abandonment grounds as they will claim that you pushed them to leave the marriage and the home.
Collusion
Given that no-fault divorces require spouses to wait a prescribed amount of time before getting their divorce finalized, some couples decide to fabricate grounds to quicken the divorce. For example, you and your spouse may claim that there was infidelity in the marriage to initiate a fault divorce. However, later on, your spouse changes their mind and decides to come clean about the agreement. They can use this as a defense to stop the divorce proceedings.
The court will review your arguments and the defenses from your partner before deciding if you will get a divorce and how you will settle the marital property, alimony, custody, and other factors. You have to make sure that you have hard evidence about your spouse’s misconduct because only then can the court consider your divorce wish and grant it. Please note that the court cannot force you to stay married, even if your spouse raises defenses. You will still get your divorce, but the terms and the grounds may not be what you wanted from the start.
Given the back and forth and the time spent collecting, presenting, and reviewing evidence, fault divorces tend to be more expensive. If you and your spouse can agree to divorce without airing your dirt in the public domain, you may want to consider a no-fault divorce.
Filing for No-Fault Divorce
As we have seen from the fault divorces, the processes can be lengthy and emotionally and financially draining. Some couples agree to avoid all the back and forth by filing a no-fault divorce, which is a way of saying that the couple has irreconcilable differences. By doing this, the couple asserts that it can no longer get along and has tried all means to reconcile but finally hit a wall.
In a state that allows no-fault divorces, all you need to do is file paperwork indicating that you wish to divorce your partner over irreconcilable differences. Unlike a fault divorce, where you have to give details and evidence, you do not need to let the court know what the differences are. In the past, most states insisted that couples prove fault as the cause of the marriage’s breakdown. Now, separation serves as a ground enough for the divorce. But if you come from South Dakota, Mississippi, and Tennessee, you will have to dig deeper and show why you need to divorce.
Common grounds for such divorces include:
Separation
If you and your spouse have lived apart for a given amount of time, you can file for a divorce based on this ground. Often, the separation is a prerequisite for divorce, as the court often asks couples to try and reconcile during this period. If you still don’t want to get back together after being apart, you can go ahead with the divorce.
Irretrievable Breakdown
Where you feel that nothing can save your marriage and you are better off going your separate ways, you can file for divorce on irretrievable breakdown grounds. In most cases, a statement from you alone is enough, and all you need is to prepare an affidavit and sign it under oath. But the court may want to make sure that you cannot save your marriage and may ask for additional details. You may need to show that you have tried counseling, reconciling, separation, and other attempts to save your marriage and failed. By showing your lack of happiness, distrust, stress, reduced sexual intimacy, communication problems, financial problems, and other problems that have burdened the marriage, the judge can proceed with the divorce.
State Acceptance
Going through the fault processes can be very draining on the couple and can affect the children and other parties to the marriage. As such, if you or your spouse can attest that there is no hope for your marriage, you can file for a no-fault divorce. Luckily, every state has mechanisms to enable such a divorce to go through without any hitches.
Shift of Acceptance
If you and your spouse have recently gotten married, but one of you is questioning the union, you can file for a divorce. By default, it should be a no-fault divorce as the assessment has taken place at an early stage. Even states that do not have fault divorces accept no-fault grounds as a reason for divorce and will allow you to terminate the marriage.
Deciding Between Filing for Fault or No-Fault Divorce
Divorcing is not easy, regardless of how you go about it. Thus, deciding between the perceived easier route and the much harder pill to swallow can be challenging. If you feel that providing evidence will give you a much better fighting chance regarding alimony, property division, and custody, you can go with the fault route. Please note that it may take longer, but it is the best option to give yourself more options by basing your argument on acceptable divorce grounds. For example, if your partner spent a lot of money on extra-marital affairs, you can use this as a basis to get a bigger share of the matrimonial property. Also, if your safety is of concern and you’re married to an abusive person, a fault divorce would enable you to get out of the situation faster.
However, if the evidence does not impact the settlement, you can go with the no-fault divorce process. You will not have to provide evidence or justify your divorce grounds and you can enjoy privacy, strain your budget less and file less paperwork. Plus, it does not come with many requirements, and once you have separated long enough, you and your partner can finally go your separate ways.
Ultimately, you know what’s best for you. However, if you need more guidance, you can always consult a lawyer and weigh your options.