The No Fault and Fault Divorce

No Fault Divorce

In 1970, California passed legislation making it the first state to recognize the breakdown of a marriage as a ground for divorce. Called the Family Law Act, this legislation heralded the concept of no-fault divorce. This concept does not accuse either party of creating the marital breakdown, a factor that makes divorce proceedings simpler. No-fault divorce also helps to reduce the bitterness associated with adversarial proceedings, not to mention the complexities often arising with property settlements, alimony, and the like. Since its inception in 1970, nearly every state has instituted some variation of no-fault divorce proceedings.

Fault Divorce

Fault divorces are less common these days and most states do not recognize them. In the few states that recognize fault divorces, a spouse can apply for divorce on the basis of some fault of the other spouse. The most common fault grounds include:

• Adultery
• Prison confinement
• Impotency or physical inability to have sexual intercourse
• Abandonment for a certain length of time
• Cruelty or infliction of physical or emotional pain

In a fault divorce there is no requirement that the spouse must have lived apart for a certain period of time before filing for divorce. Generally in a fault divorce, the spouse who is at fault will generally receive the lesser share in the martial property and support. It is precisely for this reason that some people seek divorce on fault basis.

Comparative Rectitude

In a fault divorce the court will determine which of the spouse is least at fault and that spouse will be granted the divorce. This is referred to as comparative rectitude. This doctrine was created to deal with the problems caused when the courts refused to grant divorce if both spouses were at fault. It is against public policy to compel two persons to remain married when they themselves do not want to.

Fault Divorce – Defenses

In a fault divorce, the other spouse can object to the divorce. The common defenses in a fault divorce are:

Connivance – If adultery is the fault alleged by the spouse seeking divorce, the other spouse can claim that the filing spouse agreed to and even took part in the infidelity. A spouse who voluntarily took part in a group sex activity along with the other spouse cannot complain of adultery by the latter. Also when one spouse prostitutes the other or facilitates the infidelity complained of, he or she cannot seek divorce on the grounds of adultery.

Condonation – The spouse can claim that the complaining spouse knew of the fault ground and forgave the conduct and continued the marriage. This is a common defense against adultery.

Recrimination – The complaining spouse is equally at fault. For example a spouse cannot seek divorce on the grounds of adultery if he or she also had an affair.

Provocation -The spouse who is alleged to be at fault can claim that the filing spouse compelled or enticed him or her to act in a particular manner. For example, if one spouse leaves the home because of abuse by the other, the latter cannot seek divorce on the grounds of abandonment.

Collusion – This refers to a situation where both spouses fabricate the grounds for divorce. When one spouse changes his or her mind, this defense can be raised to lessen the fault grounds.

Proving these defenses is not easy and will generally be time consuming and costly. Even if you raise these defenses, it does not mean that the divorce will not be granted. It is against public policy to compel a couple to remain married they themselves are not interested in continuing the marriage.

Divorce Residency Requirements

With the exception of Washington, South Dakota and Alaska, all states have a residency requirement for divorce filing – you must have lived in that state for a certain period of time to be eligible to file a divorce proceeding in that state. This time period is 6 months in most states but it can less or more depending on the state law. The court that hears your divorce petition will have jurisdiction over other issues of the divorce such as child support & custody, alimony and property division. So it is important that you file in your home state so that you can avoid the need to travel to another state every time there is a hearing. If your spouse is living in another state and is likely to file a divorce petition in that state, you should file in your state first. Otherwise you will have to travel to your spouse’s state every for the hearings.

Ideally you should file in the state that you are living in. This will make the process less troublesome and costly. You can file in another state provided you meet the residency requirements in that county and state. But you must keep in mind that only the court that passed the divorce order can modify custody and support orders. So if you file in another state and you want to subsequently modify the custody or support orders, you will have to go back to that state.

Divorce Orders Valid In All States

A divorce order passed by a court in one state will be recognized in all states. So if you get a divorce in Illinois, the courts in Missouri will recognize the order. However if your spouse is not in the state in which you filed your divorce petition, the court may not have personal jurisdiction over your spouse and thereby certain orders of the court may be invalid. A court will have personal jurisdiction over your spouse if your spouse was served with the papers while he or she was personally present in the state or your spouse has consented to the jurisdiction of the court. Lack of personal jurisdiction means that while the divorce decree continues to be valid, certain other orders on issues like support, custody and property division may not be.

If you have been served with divorce papers from another state or country, contact an experienced divorce attorney. The divorce laws are complex. In such cases there are many complex issues including how long the parties have resided in that states, the number of children, etc.

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