When a spouse files a divorce petition, they usually have two choices. First, they have the option of filing for divorce on no-fault grounds (also known as “irreconcilable difference” or fault grounds. The option they choose is determined by the laws of the state in which they live and the facts of the case.
What is the Definition of a Fault Divorce?
About two-thirds of states in the United States, including New Hampshire still allow spouses to divorce based on fault. One spouse may allege that the other spouse did something to cause the marriage to fail in a fault divorce. Each state has its own set of fault grounds, but the following are some of the most common:
- Inhuman and Cruel Treatment
- Substance Abuse
1. Inhuman and Cruel Treatment
This term has a legal definition in each state. It usually takes more than simple misbehavior or incompatibility. Instead, the behavior must usually be so egregious that continued cohabitation puts the other spouse’s physical or mental health in danger. This ground may be proven by ongoing physical or emotional abuse.
Adultery is a common cause of divorce due to a fault. However, state laws on what constitutes adultery may differ. Some states, for example, define adultery as involving the physical act of sexual intercourse in order to be considered such. A recent New Hampshire Supreme Court decision ruled that same-sex relations meet the requirement for adultery, even though they do not involve the historical definition of intercourse. Circumstantial evidence is frequently used to prove adultery, such as demonstrating that a spouse and a third party were romantically involved and had the opportunity to commit adultery. Judges frequently use the totality of the circumstances to determine whether or not adultery has occurred. Adultery has specific defenses, such as being guilty of the same conduct or forgiving the unfaithful spouse and resuming sexual relations with them.
If a spouse is incarcerated for a certain time, such as over a year, the state’s law may allow for a fault-based divorce.
Abandonment or desertion is another fault-based ground that the state may recognize. The law governing this ground usually specifies the length of time since the spouse abandoned the other, which is typically a year or more.
When one spouse voluntarily leaves the other with the intent to abandon them, this is known as abandonment. When one spouse abandons the other, the clock on the required timeframe starts ticking—depending on state law, reconciling and then parting ways may or may not defeat this ground.
5. Substance Abuse
Some states permit fault grounds based on habitual intoxication or drug addiction. Regular drinking and drug addiction, bigamy, impotence, and insanity are all grounds for divorce. However, impotence and bigamy are traditionally grounds for annulment when present at the time of marriage; impotence and bigamy are also grounds for divorce in some states.
When it comes to determining which procedure to utilize if an annulment is also an option, divorce may be the better alternative to avoid financial hardship for one spouse. In particular, if an annulment is granted, the marriage is declared null and void, and alimony is rarely awarded. On the other hand, a divorce ends the marriage as of the date of the decree, and maintenance may be granted.
After one spouse commits an act that is grounds for divorce and the other party is aware of the act, condonation is the voluntary continuation of the marital relationship by the spouses. The two most significant parts of condonation are forgiveness and the restoration of the marriage connection, both of which have varying degrees of applicability depending on the jurisdiction.
The Advantages of Proving Fault
Proving fault can have an impact on the financial outcome of a divorce in some states. For example, suppose a judge finds that a spouse committed adultery and used marital assets to support a lover’s lifestyle. In that case, they may consider when deciding how to divide property or how much alimony to award. If a spouse has committed adultery or has been proven to be abusive in the relationship, they may be ineligible for alimony in some states.
If you’re looking for help with your divorce, contact us. Our team of family law attorneys in Concord will help guide you through the process and toward the most favorable results.