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Grounds for Divorce

You can get a no fault divorce in any state, but you may want to understand fault grounds as well.

What is a "no fault" divorce?
Is a no fault divorce the only option even when there has been substantial wrongdoing?
What happens in a fault divorce if both spouses are at fault?
Can a spouse successfully prevent a court from granting a divorce?
Grounds for Divorce by State


What is a "no fault" divorce?

"No fault" divorce describes any divorce where the spouse suing for divorce does not have to prove that the other spouse did something wrong. All states allow divorces regardless of who is at "fault."

To get a no fault divorce, one spouse must simply state a reason recognized by the state. In most states, it's enough to declare that the couple cannot get along (this goes by such names as "incompatibility," "irreconcilable differences" or "irremediable breakdown of the marriage"). In nearly a dozen states, however, the couple must live apart for a period of months or even years in order to obtain a no fault divorce.

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Is a no fault divorce the only option even when there has been substantial wrongdoing?

In 15 states, yes. The other states allow a spouse to select either a no fault divorce or a fault divorce. Why choose a fault divorce? Some people don't want to wait out the period of separation required by their state's law for a no fault divorce. And in some states, a spouse who proves the other's fault may receive a greater share of the marital property or more alimony.

The traditional fault grounds are:

  • cruelty (inflicting unnecessary emotional or physical pain) -- this is the most frequently used ground
  • adultery
  • desertion for a specified length of time
  • confinement in prison for a set number of years, and
  • physical inability to engage in sexual intercourse, if it was not disclosed before marriage.

See the Grounds for Divorce by State chart, below.

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What happens in a fault divorce if both spouses are at fault?

Under a doctrine called "comparative rectitude," a court will grant the spouse least at fault a divorce when both parties have shown grounds for divorce. Years ago, when both parties were at fault, neither was entitled to a divorce. The absurdity of this result gave rise to the concept of comparative rectitude. 

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Can a spouse successfully prevent a court from granting a divorce?

One spouse cannot stop a no fault divorce. Objecting to the other spouse's request for divorce is itself an irreconcilable difference that would justify the divorce.

A spouse can prevent a fault divorce, however, by convincing the court that he or she is not at fault. In addition, several other defenses to a divorce may be possible:

  • Collusion. If the only no fault divorce available in a state requires that the couple separate for a long time and the couple doesn't want to wait, they might pretend that one of them was at fault in order to manufacture a ground for divorce. This is collusion because they are cooperating in order to mislead the judge. If, before the divorce, one spouse no longer wants a divorce, he could raise the collusion as a defense.
     
  • Condonation. Condonation is someone's approval of another's activities. For example, a wife who does not object to her husband's adultery may be said to condone it. If the wife sues her husband for divorce, claiming he has committed adultery, the husband may argue as a defense that she condoned his behavior.
     
  • Connivance. Connivance is the setting up of a situation so that the other person commits a wrongdoing. For example, a wife who invites her husband's lover to the house and then leaves for the weekend may be said to have connived his adultery. If the wife sues her husband for divorce, claiming he has committed adultery, the husband may argue as a defense that she connived -- that is, set up -- his actions.
     
  • Provocation. Provocation is the inciting of another to do a certain act. If a spouse suing for divorce claims that the other spouse abandoned her, her spouse might defend the suit on the ground that she provoked the abandonment.

But think twice before you raise a defense to a fault divorce. These defenses are rarely used -- for a couple of very practical reasons. First, proving a defense may require witnesses and involve a lot of time and expense. Second, your efforts will likely come to nothing. Chances are good that a court will eventually grant the divorce, because there is a strong public policy against forcing people to stay married when they don't wish to be. Your money and energy may be better spent elsewhere -- say, on paying mutual debt or saving for the children's college education.

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Grounds for Divorce by State

State Fault grounds No-fault grounds Separation Length of separation
Alabama 2 years
Alaska    
Arizona      
Arkansas   18 months
California      
Colorado      
Connecticut 1 18 months
Delaware    
District of Columbia     6 months
Florida      
Georgia    
Hawaii   2 years
Idaho 5 years
Illinois 2 2 2 years
Indiana      
Iowa      
Kansas      
Kentucky      
Louisiana   180 days
Maine    
Maryland   1 year
Massachusetts    
Michigan      
Minnesota   180 days
Mississippi    
Missouri      
Montana      
Nebraska      
Nevada   1 year
New Hampshire    
New Jersey   18 months
New Mexico    
New York   1 year
North Carolina   1 year
North Dakota    
Ohio 3 1 year
Oklahoma    
Oregon      
Pennsylvania 2 years
Rhode Island 3 years
South Carolina   1 year
South Dakota    
Tennessee 4 2 years
Texas 3 years
Utah 3 years
Vermont   6 months
Virginia   5 1 year
Washington      
West Virginia 1 year
Wisconsin      
Wyoming      

1Separation-based divorce must also allege incompatibility.
2Must allege irretrievable breakdown and separation for no-fault; if both parties consent, two years may be reduced to six months.
3Divorce will be denied if one party contests ground of incompatibility.
4Separation-based divorce allowed only if there are no children.
5May be reduced to six months if there are no children.
 
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