Affirmative Defenses to At-Fault Divorce Allegations

While a no-fault divorce is by far the easiest and most popular way to dissolve a marriage , there are still plenty of divorce actions that are based on fault. The reasons for this can range from simple anger and feelings of betrayal to a desire for revenge. After all, many states do consider fault when deciding on property distribution and alimony requests. Infidelity , abuse and other gross misconduct by one of the parties can often result in larger alimony and property awards for the complaining spouse.

This would of course, depend upon the laws of your state since many don’t allow at-fault grounds at all and those that do don’t always consider fault when distributing property.

Either way, it may be in your best interest to understand the at-fault process and be aware of the acceptable defenses to an at-fault allegation (and thus the invalid arguments in a no-fault divorce).

Generally, most states accept the following defenses to at-fault allegations in divorce proceedings:

Connivance

Connivance is an absolute defense to adultery, alleging that the complaining spouse consented to and participated in the infidelity. A couple who participated in group sex for example or a polygamous relationship could not then allege adultery on the part of his or her spouse. Likewise, a husband who prostitutes his wife or a spouse who facilitates their partner’s infidelity – whether openly or through more devious means – cannot then allege adultery as their grounds for divorce.

Condonation

Unlike connivance, condonation does not require that the complaining spouse participated in the offense, but only that they knew about it, forgave the conduct and resumed marital relations with the offending spouse.

The most common use of condonation is in response to an allegation of adultery. If one spouse cheats and the other spouse finds out but continues to have marital relations, then that particular instance of adultery is considered to be forgiven and is no longer an acceptable claim for divorce. It should be noted however, that adultery could be claimed if the cheating spouse commited another act of infidelity after forgiveness had been given for the first one.

Condonation can also be used against other at-fault allegations as well. For example, if one party decieved the other during courtship and the deception is discovered after marriage, the offended party can often claim fraud as the basis for divorce. If however, the offended party discovers the deception but then continues to live together as a married couple with the guilty spouse, the allegation of fraud is no longer applicable.

Recrimination

Recrimination is the existence of equal fault or similar conduct between the two spouses. If for instance, both the husband and wife have been having extra-marital affairs, neither can sue for divorce on the grounds of adultery since they are both guilty of the offense.

Provocation

Provocation is when the actions and behavior of one party incite another party to react in a certain way. In the case of divorce, provocation could occur when a spouse is abusive to his or her partner and then the partner leaves. The offending (abusive) spouse could not then allege abandoment as their grounds for divorce because it was in fact their abuse that drove the spouse away from the marital home.

Collusion

Collusion occurs when both spouses agree to fabricate grounds for divorce. If one of the parties then changes their mind, the defense of collusion could be raised to mitigate the original at-fault allegations.

It should be noted that raising a defense can be a lengthy and expensive process as any defense must be proved by the party accused of the misconduct. This can require additional court time and attorneys fees along with witness testimony, additional discovery and even costs for a private investigator.

Ultimately, even a proven defense will not result in a denial of divorce since it is not feasible to force two people to stay married when both parties are not committed to the relationship. As a result, the divorce will still be granted, just on different grounds so unless your defense will make a difference in property distributions or spousal support settlements, it may be better to just proceed with the divorce as quickly and painlessly as possible.