Category: Divorce Grounds
Questions/Answers
Pennsylvania No-Fault Divorce
No-fault divorces, meaning the grounds are irretrievable breakdown of the marriage, rather than fault grounds such as adultery, cruel and inhuman treatment, personal indignities or other fault-based grounds that must be proven. No-fault divorce has much lower hurdles for the parties to overcome than in a “fault divorce.” A court grants a no-fault divorce when both parties agree the marriage is irretrievably broken, after a 90 day waiting period and the filing of an affidavit by each spouse stating that each consents to the divorce or if the two parties have been living separately for at least two years. However, while a no-fault divorce is granted on the grounds of irretrievable breakdown of the marriage, it does not resolve other issues that often are involved in a divorce such as support, alimony, child custody and property division.
What are the grounds for Divorce in South Carolina?
1. One year continuous separation, 2. Adultery, 3. Habitual Drunkeness, 4. Physical Cruelty, and 5. Abandonment
Is adultery still used today, even in the era of no-fault divorce?
Adultery as grounds is not as common as it once was, but some believe that it can be useful in a property settlement negotiation or in a spousal support dispute. Judges still look with disfavor on adultery, and some lawyers believe that proof of adultery may sway a judge to a particular point of view.
What is connivance?
Connivance is a secret plan to achieve an evil or illegal end. For example: a wife wished to get a divorce from her husband. If she invites someone to stay at the couple’s house while she is absent, and that someone is there to seduce the husband into an affair, the husband could later claim that the wife connived – or set him to commit – the adultery in order to get a divorce under the grounds of adultery..
What is condonation?
Condonation is approval of certain behavior. If someone does not object to something, one could be said to have condoned it. For example: if a wife sued her husband for divorce on the grounds that he committed adultery, he could raise the defense that she condoned it, or knew about it and did not object to it. She would be unable to obtain the divorce because technically and legally there would be no marital fault.
What is "Irretrievable Breakdown” of the marriage?
Before no-fault grounds, marital fault was required for a divorce to be granted. Some couples may have wanted to divorce, but neither of them had committed any of the traditional faults: adultery, cruelty, desertion, imprisonment, etc. In order to obtain the divorce, they "colluded" or agreed to say that one of them had committed a fault that would give rise to divorce. Usually this was a claim of adultery by the husband. The couple essentially was trying to defraud the court. If before the divorce one spouse wanted to back out of the divorce, he or she could claim collusion and reveal the mutual agreement.
Is "irreconcilable differences" the same as "Incompatibility” in the marriage?
Yes, technically incompatibility and irreconcilable differences both mean that essentially you and your spouse just do not get along anymore. In a legal sense, irreconcilable differences means that you and your spouse cannot agree on certain fundamental issues, and that you never will. Judges usually don’t ask what the irreconcilable differences are, being satisfied with the claim itself. A classic "irreconcilable difference" is the complete failure to agree on how to raise the children. Disciplinary issues and religious issues are the common roots to this no fault ground.
Is "incompatibility" an adequate fault for divorce?
Incompatibility is not a fault ground, but rather is a reason for a no-fault divorce. Incompatibility is not a wrong doing by either spouse. Instead "Incompatibility " is a statement of the condition of the marriage. In a no-fault divorce, if the spouse suing for divorce gives incompatibility as the reason, he or she is saying that there is a personality conflict that is so severe that married life is impossible and that the marriage probably should have never taken place.
What if both spouses are at fault?
Yes, either of you could use the fault of the other as grounds for a divorce. Interestingly enough, at one time fault by both parties sort of "cancelled out" the other. That is, if both the husband and the wife had affairs, neither of them could claim the fault of the other in order to get a divorce. They were stuck together in the marriage. As you might imagine, this result was less than satisfactory and makes very little sense. The grounds are typically set forth by the spouse who is filing for the divorce. It is up to the non-filing spouse to file a response to the petition or complaint either accepting or countering the stated grounds. It is common for spouses to not agree about the grounds of the divorce, but the non-filing spouse may choose not to argue over it, so the divorce process will take it course in a quicker fashion.
Does a fault-based divorce still exist?
Yes, some states still have fault grounds for divorce. At one time fault grounds were used to "punish" the guilty party, but even in those states that still have fault grounds, fault is no longer used as a reason for punishment.For example, if the husband was at fault, by being mentally cruel to his wife, a court would traditionally have made him pay a large amount of alimony, to punish him for his marital fault. If, on the other hand, the wife was at fault, by having an affair, then court would punish her by reducing her alimony payment or by giving her less marital property than she would have received otherwise.
Why do we still need to establish grounds if the divorce is no-fault?
"Grounds" for a divorce establish the reason for the divorce, while "fault" refers to the fact that someone had done something wrong. At one time spouses were required to accuse the other of having done something wrong in order to be granted a divorce by the court. That "something wrong" was often an affair or domestic abuse. In a no-fault divorce, one no longer has to accuse a spouse of having committed a marital wrong doing, but rather he or she has to state that the marriage has suffered an "irretrievable breakdown," or is being terminated due to the grounds of "Irreconcilable Differences”. These no-fault grounds vary from state to state, but essentially achieve the same goal.
How long does the abandonment have to be?
The length of time of the abandonment varies from state to state. Your lawyer will know the law in your state.
What about just up and leaving the marriage? That has to be grounds for divorce.
Yes, traditionally abandonment or desertion was another fault. Abandonment means that one spouse has left the other without consent. Many times spouses abandoned marriages because they could not get a divorce any other way. By abandoning their spouses, they got what the wanted: an end to the marriage.
What are grounds?
"Grounds" are the legal reasons for requesting a divorce. When a person initiates a divorce by filing a "complaint," he or she has to state the reason for requesting that divorce. The reason or reasons are the grounds.
Helpful Tips and Facts
Irreconcilable Differences in New York!
“Irreconcilable differences” grounds for divorce has been signed into Law in New York. In addition, there are some changes in the law for temporary maintenance to the lesser earning spouse and attorney’s fees for the lesser earning spouse. As for the no-fault provision, we will have to state that the marriage is irretrievably broken for a period of greater than six months, but there will not be “blame” made on either party. The no-fault provision goes into effect 60 days from August 15, when the Governor signed the law; spousal support and counsel fees provision go into effect in 120 days from then.
New Jersey now allows divorce for ’irreconcilable differences’
The State of New Jersey joined many states that no longer require proof that your spouse is at fault before you can get a divorce. Now, ’irreconcilable differences’ lasting just 6 months is all that is required. This helps to take out the need to blame your spouse in the court papers, before you can start the divorce process.
New York is Unique - You MUST Have Grounds for a Divorce
New York is the only state in the nation that does not offer a no fault divorce option. You must have one of the six grounds for a divorce listed in the Domestic Relations Law: (1) The cruel and inhuman treatment of the plaintiff by the defendant. (2) The abandonment of the plaintiff by the defendant for more than one year. (3) The confinement of the defendant in prison for a period of three consecutive years. (4) The commission of an act of adultery. (5) The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years. (6) The husband and wife have lived separate and apart pursuant to a written agreement of separation for a period of one year. An experienced matrimonial lawyer can almost always help you make your case fit in one of the categories.
Does cheating really matter anymore?
In Texas, as with other states, adultery does not carry as much weight as it used to. While that may be the case, consider this: If you have a standard no fault divorce in Texas, the court is pretty much bound to divide the property equally. This is true if the judge takes a disliking to one party or the other. However, if there is adultery, and it is properly asserted as a ground for divorce, you give the court the power to divide the property pretty much as they see fit. If you are the adulterer, you better be on your best behavior in front of the judge!
The Divorce Colling Off Period
Since the 1970s, when most states adopted some form of no-fault divorce, most people have become more accepting of the fact that some marriages fail. What has not changed, however, is the pain associated with divorce. Even with no-fault, rarely do two people come to a decision to divorce at the same time. One spouse leaves; the other is left. The person who initiates the divorce should give the one who is left time to catch up emotionally.Marriage takes two people who want to married and work at it; divorce takes one who wants out. If a spouse truly wants to end a marriage, no amount of marriage counseling will force him or her to stay married.
Irreconcilable Differences
All states now have some form of no-fault divorce, but each jurisdiction has its own definition of "irretrievable breakdown" or "irreconcilable differences."
A Spouse Contesting Constructive Abandonment
When the grounds for divorce are contested, meaning one spouse is alleging constructive abandonment exists, but the other is disagreeing, the difficulty in substantiating the grounds with evidence becomes next to impossible. In a situation like this, most divorce lawyers explore the opportunity to choose another ground for action.
Polygamy and Bigamy - Two in the Same
It is the willful contracting of a second marriage when the contracting party knows that the first is still valid; or it is the state of a man who has two wives, or of a woman who has two husbands living at the same time. When the man has more than two wives, or the woman more than two husbands living at the same time, then the party is said to have committed polygamy, but the name of bigamy is more frequently given to this offense in legal proceedings.
Substantiating Your Grounds for Divorce
When filing for a divorce you must prove to the court that the alleged grounds actually exist or have transpired. If the filing spouse cannot prove that the alleged grounds exist or have transpired, then the case will be dismissed. For example, if a spouse is filing for a divorce based on allegations of abuse and it cannot be substantiated with evidence, the case will not be heard by the court.
Cheating when Separated
If you decide to start a new sexual relationship without being divorced, you may want to consult with a divorce lawyer. There could be certain legal repercussions since you technically are still married and therefore would be committing adultery.
A Road Not Taken
Many lawyers advise against using adultery as a ground for divorce even when it is the case. This is because it is very difficult to prove and often times marital misconduct is not considered as much as it used to be.
Abandonment vs. Living Separate & Apart
In many no-fault divorce states the only grounds for a no-fault divorce is living separate and apart for a certain period of time. Many spouses who are in agreement do not realize that they may qualify to file under the grounds of abandonment in order to bypass the living separate and apart requirement.