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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 reason 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.

What happens in a fault divorce 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.

Nowadays, it's usually one spouse who files the divorce papers first; if the other person disagrees with the "fault" accusations, he or she can file an "answer" to the divorce complaint.

While this may go a long way to soothe someone's pride, it adds up to a longer divorce process and more money spent on legal work and court filings.

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 the no fault divorce available in a state 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 think twice before you raise a defense to a fault divorce. 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. Your money and energy may be better spent elsewhere -- say, on paying mutual debt or saving for the children's college education.

Copyright 2005 Nolo

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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.

 




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