• Types of Divorce and Defenses

    types of divorce

    1. Traditional Fault-Based Grounds

    There are several fault-based grounds for divorce: cruelty, adultery, desertion and several others. These fault-based grounds can only be used in states that recognize fault-based divorce. Today, most states no longer recognize fault-based divorces, however the ones that do, do not require the spouse seeking the fault-based divorce to live apart from the spouse for a specific period of time.


    A spouse must show clearly and indubitably his/her status as the injured and innocent spouse to show cruelty existed during the marriage. In the past, cruelty used to be limited only to bodily harm or apprehension of bodily harm. Today however, psychological harm or mental harassment can warrant a divorce. The act of cruelty also needs to be a course of conduct, not just random sporadic actions.


    The nature of the act of adultery requires that circumstantial evidence will most likely be used to sustain the claimant’s burden of proof. Showing facts or circumstances that lead fairly and necessarily to the conclusion that adultery has been committed can make out a prima facia case of adultery. It is important to note that conduct that occurred while the parties were separated is relevant in a divorce action.


    Specific acts that are considered to be desertion vary from state to state. Not only does physical separation for a specific amount of time constitute desertion, but some states also consider failure to provide financial support to a spouse or refusal to engage in sexual intercourse without a good reason to also be desertion. To show desertion, you must provide evidence that the circumstances surrounding the other spouse’s leaving the home without a reason and that the spouse was giving up on the marriage and abandoning the marriage obligations. It is important to note that if the spouse that leaves returns back to the marital home and the couple gets back together for a period of time, and then the spouse leaves again for a second time, the reconciliation may mean that the 2 periods of separation cannot be added together.

    2. Traditional Defenses to A Fault-Based Divorce

    A spouse can object to a fault-based divorce by presenting a defense to the fault that is complained of. There are 5 traditional defenses:


    This is an absolute defense to adultery. This is a defense that states that the spouse wanting the divorce consented to, and in some situations participated in, the adultery.


    This is a claim that the spouse wanting the divorce knew about the complained conduct and forgave the conduct, then resumed the marital relationship. This can also be used as a defense to adultery.


    This is a claim that the spouse wanting the divorce is equally at fault or engaged in similar conduct that is in the complaint. An example of this would be if both spouses had separate affairs, neither could use adultery as a fault-based ground for divorce.


    This is where one spouse is enticed by the other to act in a certain way. An example would be if one spouse physically abuses the other so much that he/she leaves the home, the abusive spouse would be unable to use desertion as a fault-based ground for divorce.


    This is essentially when both spouses agree to fabricate the grounds for divorce.

    3. No Fault Divorce

    All states today recognize no fault divorces. No fault divorce means that the spouse filing for divorce does not need to prove any fault on the part of the other spouse. The spouse, however, must give a reason that the state honors for the divorce. For instance, a reason for divorce would be for “irreconcilable differences” or an “irreparable breakdown of the marriage.”

    It is important to note that some states requires that the couple live separately for a designated period of time before either of them can file for a divorce. For example, in Pennsylvania, a couple must live separate and apart for a period of 2 years. However, this does not mean that the parties cannot live in the same residence. There needs to be a “cessation of cohabitation,” which means that the couple is not involved in either intimate or sexual relations.
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