Divorce Defense

Defenses to Fault-Based Divorces

Defending yourself against a fault-based divorce.

Fault Versus No-Fault Divorces

No-fault divorces are typically the cheapest, fastest, and simplest types of divorces and they are available in every state. However, some spouses may choose a fault-based divorce in hopes of obtaining some advantage in the divorce proceeding.

In a no-fault divorce, spouses do not have to claim and prove that the other engaged in some misconduct which caused the break up of the marriage. Instead, you can obtain a divorce by simply claiming that you and your spouse have irreconcilable differences, which essentially means that you and your spouse no longer get along and your marriage is irretrievably broken. You do not need proof of fault in No-fault divorces.

Unlike a no-fault divorce, a fault-based divorce requires proof that one spouse’s bad actions destroyed the marriage. For example, if you're seeking a divorce from your spouse based on abuse, you’ll need to prove that you were subjected to some form of cruelty by producing evidence, such as witnesses, police reports, pictures, medical records, or any other information that would support your claims.

What are the Grounds for a Fault-Based Divorce?

The laws governing fault-based divorces vary from state to state, but the most commonly recognized fault grounds are:

  • adultery

  • physical and/or mental cruelty (abuse)

  • substance abuse or addiction

  • abandonment

  • incurable insanity

  • impotence, and

  • imprisonment.

One spouse can seek a divorce on multiple fault-based grounds.

Why Would Someone Request a Fault Divorce?

In some states, an innocent spouse may receive a larger share of marital property or a bigger alimony award if that spouse can prove the "guilty" spouse caused—or was at fault for—the divorce by engaging in specific behavior that caused the breakup.

Additionally, many states’ laws require a couple to live apart for a certain amount of time before obtaining a no-fault divorce. Generally, with fault-based divorces, couples don't need to meet a specific period of separation. For example, if you feel that your spouse’s extreme cruelty is making it dangerous to stay married, you can seek a fault divorce immediately.

How Can I Protect Myself Against a Fault-Based Divorce?

You can defend yourself against a fault divorce by either claiming that your spouse’s allegations against you are false, or by claiming a legal defense. A divorce defense is essentially a legal excuse for your actions. The legal defenses available vary from state to state. However, the most commonly recognized divorce defenses are: connivance, condonation, recrimination, provocation, and collusion.

Connivance

Connivance occurs when one spouse baits or sets up the other to commit a wrongful act, like adultery. An example of connivance might be if one spouse encourages the other spouse to have an affair, but the encouraging spouse later seeks a divorce on adultery grounds. The spouse who had an affair only because of the other spouse’s encouragement may be able to claim connivance as a defense. Note that connivance is a limited defense and is usually only used in divorces brought on adultery grounds.

 

Condonation

A condonation defense is a claim that one spouse knew of the other’s bad conduct, forgave it, and resumed the marriage. This defense is most commonly used in divorces sought on adultery grounds. Specifically, if your spouse knew that you were having an affair and consented to the affair or forgave your actions, your spouse can’t later seek a divorce based on your adultery.

 

A condonation defense requires proof. Specifically, the spouse asserting condonation must prove that the other spouse:

  • knew about the defending spouse’s wrongful acts

  • forgave the defending spouse’s behavior, and

  • continued the marital relationship.

 

Recrimination

Recrimination occurs when the complaining spouse is guilty of the same conduct alleged in the divorce petition. This defense is typically used in cases where both spouses committed the same bad act, whether it be adultery, cruelty, abandonment, or substance abuse.

 

Provocation

Provocation happens when one spouse provokes the other into committing the bad act. For example, if your spouse abused you during the marriage but is now seeking a divorce on abandonment grounds, you could assert provocation as a defense. In other words, your spouse’s abuse provoked, or led, you to leave the marriage.

 

Collusion

A spouse may assert the defense of collusion where the couple fabricated a grounds for obtaining a divorce. For example, some couples who don’t want to wait the requisite time for a no-fault divorce, may claim abandonment as a grounds for divorce, even though neither spouse abandoned the marriage. In this case, the spouses have colluded, and one may have a change of heart later

Considerations Before Asserting a Defense to a Fault Divorce

Depending on your state's laws, you may receive a better property or support award by asserting a defense in a fault-based divorce. However, you can’t prevent a judge from granting the divorce merely because you raised a legal defense. Courts cannot force spouses to stay married to one another, so eventually, if your spouse wants to be divorced, a judge will grant that request, regardless of whether or not you assert a defense.

Additionally, asserting a divorce defense requires evidentiary proof, which may include witnesses, phone records, medical records, account records, and/or physical evidence. Finding and proving the elements of your defense will require expert legal advice, additional time, and money (think fees and court costs), which is why most spouses request a no-fault divorce and provide no defense to a divorce request.

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If you still have questions about raising defenses in a fault-based divorce, or would like to consult personally confidentially, contact us at Rashad Law, your local family law attorney, for advice.

626 RXR Plaza

Uniondale, New York 11556

Tel: 516.522.2718

Fax: 718.744.2560

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