• Fault Based Divorce

    fault based divorceThe area of Family Law governs all of the interactions within the family. One large part of Family Law is the process by which a married couple terminates its marriage. There are two options for terminating a marriage: divorce and annulment. Also, within divorce, a fault-based or no-fault divorce may be available. A fault-based divorce requires proof of an act detrimental to the marriage. A no-fault divorce typically requires an irretrievable breakdown of the marriage and a certain period of time of separation.

    A fault-based divorce will only be granted to an innocent spouse. A spouse who has some fault in the marriage will not be granted a fault-based divorce. Some grounds for fault-based divorce include cruelty, adultery, and desertion. To successful claim cruelty, a spouse seeking a divorce must show that there has been continuous cruelty, not mere sporadic cruelty. Cruelty applies to physical and mental cruelty. However, a single incident of cruelty is not enough to justify a divorce, even if that one incident included physical harm.

    To successfully claim adultery, a spouse must show that the other spouse had sexual intercourse with someone outside of the marriage. Circumstantial evidence of adultery may be sufficient. A child born of an in-tact marriage is presumed to be born of the marriage. Some ways of proving adultery include the wife bearing a child who did not come from the husband, the husband not having “access” to the wife at the time of conception, and the husband was impotent or sterile at the time of conception.

    Desertion is when one spouse deserts the other spouse. A spouse may claim constructive desertion, which is when a member of the marriage fails to engage in the marriage. Refusal to have intercourse without contraceptives may constitute constructive desertion.

    When one spouse is seeking a fault-based divorce, the other spouse may claim some defenses which, if claimed successfully, will deny the divorce. Defenses include recrimination, connivance, condonation, collusion, and insanity. Recrimination is when both spouses have been abusive to each other. This bars divorce because the party seeking a divorce must be innocent, and in the case of recrimination, both spouses are at fault. The defense or recrimination has been limited or eliminated in some states. Connivance is when one spouse participates in, or consents to, the other spouse’s wrongdoing. This type of situation arises when one spouse sets up a situation for the other spouse to be at fault. Although one spouse is the only spouse that committed fault, such as adultery, the other spouse cannot create a situation which will lead to the adultery. Condonation is forgiveness by a spouse. Codonation may be claimed when one spouse resumes sexual relations with the wrongdoer following knowledge of the wrongdoer’s conduct. Collusion is when spouses agree to fabricate evidence of marital wrongdoing by one spouse to provide grounds for a divorce. With insanity, there is a rebuttable presumption of sanity. Insanity must be proven by the person claiming insanity.
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