The definition of divorce is the legal termination of a marriage. While married couples have neither a legal nor a constitutional right to seek a divorce, most states typically grant them because mandating that a couple remain married when they do not wish to do so would go against public policy.
In the United States, there are two types of grounds for a divorce. They are: no-fault and fault. In some states, however, even if there are fault grounds that subsist within the marriage, no-fault is considered the only viable justification for a divorce. The other states permit the members of the couple to select either a no-fault or a fault divorce.
The concept of a no-fault divorce was first adopted in the United States in the late 1960's, and presently, almost all of the states permit some variation of it. In a no-fault divorce, the parties involved do not legally fault, or blame, one another for the divorce; "irreconcilable differences," "irretrievable breakdown," and "incompatibility" are some examples of the grounds for a no-fault divorce. In general, one spouse cannot prevent a no-fault divorce from being realized simply because when one spouse desires a divorce and the other spouse does not, this amounts to irreconcilable differences, which is one of the justifications for a no-fault divorce.
In many states, a "cooling-off period" of separation is necessitated for a certain amount of time before no-fault divorce proceedings can commence. For the duration of this period, the members of the couple are obligated to live separate and apart from one another with the objective being that the separation will become permanent. The specified length of the cooling-off period is subject to variation according to state law.
For the states that also allow fault grounds for a divorce, some common fault grounds include: cruelty, desertion, adultery, prison confinement, habitual intemperance (drunkenness or drug addiction), and impotency. In cases where both members of a couple are found to be at fault, courts will usually employ the doctrine of "comparative rectitude" and grant the divorce in favor of the party who is least to blame. Comparative fault may also be used in some states as a basis for conceding a greater alimony award or a larger segment of marital property to the spouse who is proven to be least to blame. Couples may be tempted to seek a divorce based on fault in order to prevent having to delay the divorce by complying with the state's obligatory separation requirements for a no-fault divorce.
With regards to fault divorces, there are several "defenses" that can be used, which include collusion, connivance, condonation, and provocation. These defenses are not employed often, however, with the potential reasons being that they necessitate witnesses as well as additional court time, which is costly and can prolong the divorce proceedings. Furthermore, even if one or more of these defenses can be proven, courts will generally still accord the divorce so as to not force a couple to remain married when at least spouse does not wish to do so.
The act of collusion may be committed by a couple who wants to bypass their state's mandatory separation period, and as a result, attempts to wrongly create fault grounds for the divorce. Connivance is when one spouse sets the other spouse up for wrongdoing and then uses it later as a justification for a fault divorce. The condonaton defense refers to when a member of a couple condoned a specific behavior during the marriage and then tries to use that same behavior as a fault ground for divorce. The provocation defense may be used when one spouse provokes the other spouse to commit a wrongdoing.
In the United States, there is a lot of state-by-state variation when it comes to divorce laws and the specific grounds required for divorce. For more information, visit the American Bar Association's Section of Family Law website.
Michaela Zanello is a contributing writer for Fee Legal Aid, a comprehensive, online database of free legal resources that can help guide you in your search for legal assistance. For more information, visit http://www.freelegalaid.com/.
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