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Grounds For Obtaining A Divorce

In the past, a divorce was granted only if one of the parties could show some fault on the part of his or her spouse. For example, a husband that abused his wife was at fault for cruelty and the wife could obtain a divorce. In modern times, finding fault is no longer necessary and "no-fault divorces" are routinely granted. A no-fault divorce avoids the necessity of presenting sordid details of a couple's private life to the public.

SIDEBAR: A no-fault divorce is not the same as an uncontested divorce. In an uncontested divorce the spouses are in agreement on all the issues neither one is contesting or challenging the other's point of view. On the other hand, no-fault divorces routinely include many contested issues, such as alimony payments and child custody.

Additionally, a spouse who pleads grounds for divorce that place the fault on the other party, such as adultery, is generally in no better position because of the infidelity. At one time, a wife, for example, may have received a larger share of property when the divorce was granted if she proved her husband had been unfaithful. Currently, however, grounds for divorce based on the fault of one of the spouses do not affect the outcome to a great degree.

Incompatibility

When a couple can no longer live together because of their differences, laws in most states permit a divorce to be granted based on incompatibility, insupportablity or irreconcilable differences. Divorces granted on these grounds are known as no-fault divorces. No specific event needs to occur or be shown in order to prove the couple's incompatibility. The filing spouse simply has to allege that there is a discord or conflict of personalities that has destroyed the marital relationship and that prevents any reasonable expectation of reconciliation. The laws in most states specifically provide that fault need not be proved.

SIDEBAR: Laws may utilize terms such as "general indignities" instead of "incompatibility." In these cases, the parties are required to show a series of events and occurrences that humiliated one of the spouses. Arkansas, for instance, requires a showing of habitual, continuous and permanent hate, alienation, and estrangement on the part of one spouse that makes life for the other spouse intolerable.

It is not necessary that both the husband and wife feel that the marriage has become intolerable. For instance, if the wife testifies that she believes there is no chance of reconciliation, then the divorce may be granted, even where the husband has a different opinion.

TIP: When a divorce is "proved up" in court, the petitioner only has to testify that the legal or statutory reason for a divorce exists. For example, the wife will testify to the judge that "a discord and conflict of personalities between her and her husband exist, which renders the marriage impossible and insupportable" or whatever the definition of no-fault divorce is in her state. No additional details concerning problems in the marriage are required.

My husband and I are still living together. Can I get a no-fault divorce?

Yes. The fact that your marriage is intolerable is not necessarily disproved because you and your husband are cohabitating. The court will look at other facts to which you can testify to show incompatibility. For instance, if your husband is consistently drunk, then the marriage may be intolerable because you are living with him and have no where else to go. (Note that a physical separation may be required under state law before the divorce is granted.)

I do not have any facts to show that my husband and I are no longer compatible I just know that our marriage is over. Can I get a no-fault divorce?

Yes. It is not necessary to recite a list of events or occurrences that make your marriage intolerable. You only need to testify that there is no chance of reconciliation and that the marriage is over in your mind.

SIDEBAR: In legal terms, when a marriage is "over," there has been an "irretrievable breakdown of the marriage."

My husband is going to testify that he believes we have a chance of reconciling. Will the judge refuse to grant a divorce even though I will testify that I believe reconciliation is impossible?

No. It is not necessary that both of you believe the marriage is over. Your testimony is sufficient to permit the judge to grant a divorce.

I filed for a no-fault divorce. However, my wife is alleging adultery and cruelty. Can the judge grant a no-fault divorce?

Yes. The court does not have to grant the divorce based on fault simply because that is your wife's testimony. You can still obtain a divorce based on the breakdown of the marriage alone.

Cruelty

Cruelty by one spouse toward the other spouse is a ground for divorce. The cruelty can be emotional or physical, but there must be proof that the actions were extreme and inhumane. Although in general the cruel behavior must be continuous and habitual, a single act can be the basis for a cruelty allegation in a divorce suit.

Is physical violence toward a spouse considered to be "cruelty" for the purposes of obtaining a divorce?

Yes. Anytime you are in bodily danger and believe that you are unsafe, your spouse is engaging in cruel treatment.

My wife is constantly drunk and is impossible to deal with on a daily basis. Can I prove cruelty as grounds for divorce?

Yes. Habitual and excessive drinking is generally viewed as cruel behavior by the courts.

My husband recorded my phone conversations. Does this rise to the level of cruelty?

No. Recording your conversations is not inhumane treatment.

Am I being subjected to cruelty because my husband constantly calls me rude names?

No. Rudeness alone does not rise to the level of cruel and inhumane treatment. However, verbal abuse is different from rudeness and does rise to the level of cruelty. If your mental well-being is so affected by the verbal abuse that you can no longer live in the house with your spouse, then cruelty exists.

My wife has gambled away our life savings. Can I get a divorce based on cruelty?

No. You are not in physical danger; she has not verbally abused you or acted inhumanely. The fact that she has caused you worry and anxiety is not enough to obtain a divorce on cruelty grounds alone.

Adultery

An individual who has engaged in sexual relations with a person other than their husband or wife has committed adultery. Laws allow the court to grant a divorce based on a single act of adultery by either the husband or wife and nothing more. For instance, a wife can obtain a divorce based on her husband's one-time infidelity without showing that any other problems or issues exist in the marriage.

I think my wife is cheating. Do I need actual proof of adultery to obtain a divorce on that basis?

Yes. You must show the court either direct or circumstantial evidence of her infidelity. A feeling or belief is not enough proof.

My husband is involved in a homosexual relationship. Has he committed adultery?

Maybe not. Although, for purposes of divorce, laws typically do not limit adultery to sex outside marriage between only a man and a woman, some courts have ruled that a homosexual relationship is not adulterous.

SIDEBAR: A New Hampshire court reasoned that adultery requires sexual intercourse, which it found to mean sexual relations between a man and woman.

My wife and I were separated when she had an affair with her boss. Can I allege adultery in my divorce petition?

Yes. The fact that you and your wife were separated does not change the legal definition of adultery: sex with another person outside of marriage. Since you were still married when she had her affair, you can allege adultery in your petition.

Abandonment

Laws allow a spouse to obtain a divorce when their husband or wife has deserted or abandoned them for a period of time. Time periods vary according the state in which the petitioner resides, but generally range from 1-2 years.

Abandonment, as a ground for divorce, requires that the petitioner show that:

  • the abandoning spouse left without consent;
  • the abandoning spouse left without any justifiable reason; and,
  • the petitioner does not know where the abandoning spouse is living.
  • My wife has refused to sleep with me, eat meals with me or talk to me for over a year. Do her actions "constitute abandonment"?

    Yes, your wife's actions amount to constructive abandonment. In other words, she may have been physically present in the home, but in all other ways she abandoned the marriage.

    During an argument, I told my husband to leave. He has been gone for over a year. Can I get a divorce based on abandonment?

    No. He not only left with your consent, he left at your request. Under these circumstances, you cannot allege abandonment.

    If my spouse left because of my inability to stop drinking, can I allege abandonment in my divorce petition?

    No. Desertion or abandonment requires a spouse to leave without any reason or justification. Since you have a drinking problem, you spouse can argue that he had no other choice but to leave, or that his leaving was justified.

    My wife moved out, and I'm glad she's gone. Can I use abandonment as grounds for divorce?

    No. Courts typically grant divorces on abandonment grounds when the spouse who is "abandoned" wants the husband or wife to return. In your case, you have no desire for your wife's return.

    My husband went to work overseas against my wishes. Can I divorce him because he abandoned me?

    No. Your husband had a good reason for leaving work. Since he had a justifiable reason for being away, he has not abandoned you.

    Living Apart

    Spouses who have not lived together for several years may obtain a divorce. Laws require a separation as long as 7 years in some states, if used as a ground for divorce. Couples who have gone their separate ways and have not seen each other for many years are able to obtain a divorce in this way without any other allegations.

    Neglect of marital duties

    Laws permit a spouse to divorce his wife or her husband for gross neglect or dereliction of marital duties. Spouses have certain obligations to one another under the law. Failing to perform those obligations, or neglecting a duty, is a ground for divorce.

    Marital duties include fidelity toward one another, engaging in sexual relations and participating in the care and raising of children. For example, a husband will be granted a divorce on these grounds where his wife abused credit cards, took out a second mortgage on the house to pay them off, and refused to cook or clean, because, taken as a whole, the wife was grossly neglectful.

    My husband has filled our house with so much junk, newspapers and other items that it is practically unlivable. Is he neglecting a marital duty?

    No. The duty to keep a home clean is minimal. Bad housekeeping is not gross neglect of a marital duty.

    SIDEBAR: The home's condition, due to neglected housekeeping, must be "flagrant, heinous, odious, atrocious, shameful or despicable," for a finding of gross neglect.

    TIP: Filling the home you share with your spouse with dozens of cats, for example, is a gross neglect of a marital duty, because the house would meet the atrocious and odious standard.

    Confinement in mental facility

    A husband or wife whose spouse has been confined to a mental hospital or facility can petition for divorce. Laws typically require some amount of time to pass before the divorce petition can be filed. Additionally, the mentally ill spouse must be diagnosed with a condition from which there is little chance of improvement.

    TIP: An attorney ad litem must be appointed by the court to represent the mentally ill spouse in a divorce proceeding.

    Although my wife has been living in the state mental hospital for several years, she sometimes returns home to visit. Can I get a divorce based on her confinement in the mental hospital?

    Yes. Your wife's home visits do not change the fact that she has been committed to a mental hospital. Unless she has been finally discharged, your wife is confined because of her mental illness and you can seek a divorce on these grounds.

    My husband has severe bipolar disorder and has been in and out of mental hospitals. Is this grounds for divorce?

    No. Mental illness alone is not a basis for divorce. Your husband must have a prolonged confinement in a mental hospital in order for you to get a divorce.

    TIP: Where one spouse's mental illness is not a ground for divorce, other grounds, such as incompatibility, can be alleged.

    Conviction of felony or incarceration

    Laws in some states permit divorce where one of the spouses has been convicted of a felony crime, or has been imprisoned for a period of time. For instance, the wife of a corporate CEO convicted of a white-collar felony crime may obtain a divorce based on her husband's conviction.

    My wife is on trial for felony theft. Can I get a divorce because she committed a felony?

    No. A criminal charge alone is not enough. Your wife must be convicted or imprisoned before you can obtain a divorce on these grounds.

    TIP: A guilty plea is the same as a conviction.

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