Background
Whether a marriage has broken down irretrievably is a state of affairs.
If one person to a marriage has declared their intention not to continue with the marriage, it has irretrievably broken down.
However, that declaration must be supported by action.
A marriage, in which one person declares that it has irretrievably broken down,
would not have broken down if both parties continue to live together and share their lives.
Whist it is possible for two people, whose marriage has irretrievably broken down,
to continue to live in the same house, they will not be expected to cook, eat, and sleep together.
In such circumstances, the court will expect each party to have an independent life away from the other before a decree of divorce will be granted.
Often two people are dependant on the local authority for their housing.
While the obligation to live together imposed by marriage remains in place,
the local authority will generally not re-house one or both.
The court may be reluctant to grant a decree of divorce while they both live together,
since it may not satisfied that the marriage has irretrievably broken down.
If this scenario occurs, the court could be petitioned for a decree of judicial separation.
The court will grant a decree of judicial separation provided one or more of the facts are proved.
The court will not enquire if the marriage has irretrievably broken down.
The local authority may then re-house one or both. Once they are living apart,
the court should not question whether the marriage has irretrievably broken down.
If a person seeks a decree of divorce or judicial separation, they must prove one or more of five facts.
If they cannot prove one or more of the five facts, they will not be entitled to a decree of divorce or judicial separation.
The level of proof required is on the balance of probabilities. That means that it is more probable that it did occur than did not occur.
What is a "Fault" Divorce?
A fault divorce may be granted when the required grounds are present and at least one spouse asks that the divorce be granted on the grounds of fault.
Only some states allow fault divorces.
The traditional fault grounds are:
- cruelty (inflicting unnecessary emotional or physical pain) -- this is the most frequently used ground for divorce
- 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.
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.
What if both spouses are at fault? When both parties have shown grounds for divorce,
the court will grant a divorce to the spouse who is least at fault under a doctrine called "comparative rectitude."
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.
Difference Between "Fault" and "No Fault" Divorce
Grounds for fault include adultery, physical or mental cruelty, desertion, alcohol or drug abuse, insanity,
impotence or infecting the other spouse with a venereal disease.
The respective rights to distribution of property and spousal support can be affected by a spouse's fault in causing the breakdown of the marriage in some states.
In a no fault dissolution of marriage, a declaration by one spouse of the marriage that irreconcilable differences
have arisen that neither time nor counseling will cure is sufficient grounds for a court to terminate
the marriage and return the former spouses to the legal status of unmarried (single) persons.
In a no fault divorce or dissolution of marriage, the actions of the respective spouses in the breakdown of the
marriage does not affect property distribution or spousal support rights.
Out of State / Country Divorce
If one spouse meets the residency requirement of a state or country (such as having lived there from six months to a year),
a divorce obtained there is valid, even if the other spouse lives somewhere else. The courts of all states will recognize the divorce.
However, decisions a court makes regarding property division, alimony, custody,
and child support may not be valid unless the court had jurisdiction over the nonresident spouse.
The court gets jurisdiction when the nonresident spouse is personally served with the
divorce documents (meaning they are delivered into the person's hands), or consents to jurisdiction.
A nonresident spouse consents to jurisdiction by showing up at a court date or signing an affidavit of service,
acknowledging receipt of the filed legal documents. It can also happen if the nonresident spouse abides by the rulings of the court;
for example, by paying court-ordered child support.
If you receive documents from a foreign country,
you may want to consult an attorney about whether your state court or the foreign court governs the issues.
This depends on many factors, such as which particular country is involved,
where the parties lived and for how long, and, of course, whether children are involved.
Examples of USA Grounds For Divorce - By State
Texas
- living apart without cohabitation for three years
- irreconcilable differences (because of discord or conflict of personalities that destroys legitimate ends of marriage relationship
and prevents any reasonable expectation of reconciliation)
- cruel treatment against complaining spouse, if such treatment is of such nature as to render further living together insupportable
- other has voluntarily left complaining spouse for one year with intention of abandonment
- other has committed adultery
- conviction of felony (after marriage), imprisonment for at least one year
(not, if convicted spouse has been pardoned or was convicted on testimony of complaining spouse)
- other spouse has been confined in mental hospital for three years, and disorder is such that he will probably not adjust,
or if he does, that he will probably relapse.
California
- irreconcilable differences (determined by court to be substantial reasons for not continuing marriage)
- incurable insanity (proof on competent medical testimony)
New York
- living apart for one year pursuant to separation decree, judgment or written agreement, with satisfactory proof of substantial performance of same.
- cruel or inhuman treatment (such that defendant's conduct so endangers plaintiff's physical or mental well-being as to render cohabitation unsafe or improper)
- abandonment by defendant for one year
- imprisonment of defendant for three consecutive years after marriage
- adultery by defendant
West Virginia
- separation for one year without any cohabitation and without interruption
- irreconcilable differences between parties
- adultery
- conviction of felony
- abandonment for six months
- willful desertion for six months
- cruel or inhuman treatment
- habitual drunkenness of either party subsequent to marriage
- addiction to habitual use of any narcotic drug or drugs or dangerous drug subsequent to marriage
- permanent and incurable insanity and confinement in mental hospital for at least 3 consecutive years
- abuse or neglect of child of parties or one of parties or for neglect of child for which neglecting party has legal responsibility
New Jersey
- separation, provided that husband and wife have lived separate and apart in different habitations for at least 18 consecutive months,
and there is no reasonable prospect of reconciliation (which shall be presumed after 18-month period)
- willful and continued desertion for 12 months
- adultery
- extreme cruelty (provided that no complaint for divorce on this ground shall be filed until after three months
from date of last act of cruelty complained of, but this does not apply to counterclaim)
- voluntarily induced addiction or habituation to any narcotic drug or habitual drunkenness for 12 or more consecutive months subsequent
to marriage and immediately before filing of complaint
- institutionalization for mental illness for 24 or more consecutive months subsequent to marriage and next preceding filing of complaint
- imprisonment of defendant for 18 or more consecutive months after marriage (provided that if action commenced after defendant released,
parties have not resumed cohabitation
- deviant sexual conduct voluntarily performed by defendant without consent of plaintiff
Oklahoma
- incompatibility
- abandonment for one year
- adultery
- impotency
- pregnancy of wife, at time of marriage, by another than husband
- extreme cruelty
- fraudulent contract
- habitual drunkenness
- gross neglect of duty
- imprisonment under sentence for felony at time petition is filed
- procurement of final divorce decree outside state which does not in this state release other party from obligations of marriage
- insanity for five years, after having been patient of mental institution for such period, with poor prognosis for recovery
Rhode Island
- separation for at least three years, whether voluntary or involuntary
- irremediable breakdown of marriage
- marriage was originally void or voidable by law
- either party is for crime deemed to be or treated as if civilly dead
- impotency
- adultery
- extreme cruelty
- willful desertion for five years of either of parties
- desertion for less than five years in discretion of court
- continued drunkenness
- habitual, excessive and intemperate use of opium, morphine, or chloral
- neglect and refusal, for period of at least one year before filing of petition, on part of husband to provide necessaries for subsistence of his wife,
husband being of sufficient ability
- any gross misbehavior and wickedness in either of parties, repugnant to and in violation of marriage covenant
Georgia
- irretrievable breakdown of marriage relationship
- mental incapacity
- impotency
- force, menace, duress or fraud in obtaining marriage
- pregnancy by man other than husband at time of marriage, unknown to husband
- adultery
- willful desertion for one year
- conviction (imprisonment for a term of two years or longer)
- habitual intoxication
- cruelty
- incurable mental illness (under continuing treatment for 2 years)
- habitual drug addiction
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