By Sara Pitcher
Cordell & Cordell Divorce Lawyer
There are several defenses that are available to defend against accusations of wrongdoing and fault in a fault-based divorce.
Even though most states are moving away from fault-based divorce, you will still want to be prepared in the event your wife files for divorce alleging fault.
As mentioned in my previous divorce article “No-Fault Divorce vs. Fault Divorce,” some acts that constitute grounds for fault-based divorce include adultery, physical or mental abuse, conviction of a felony, or abandonment.
So if your wife alleges fault, here are 5 defenses you may be able to use.
1. Collusion: when the spouses agree to fabricate the grounds for divorce. If one spouse later changes their mind about the divorce, this can be used as a defense to the fault-based divorce.
Example: The parties agree to stage an affair as grounds for the divorce. If one party later changes his mind and shows that the proof of the affair or the actual affair itself was fabricated, that can be a defense against the claim of fault.
If this seems strange, consider that when divorce was largely fault-based many years ago, staging pictures that claimed to show one party engaged in an affair were common. A man would be photographed with a scantily clad female in a bedroom and that would be submitted to the court as grounds for a divorce.
The courts and lawmakers became wise to this when it became obvious that it was often the same few women appearing in the photographs and it was realized that the women were being paid by the parties to fake an affair. This is not as common now that parties can often seek a no-fault divorce.
2. Condonation: when the spouse was aware of the complained-about conduct and resumed the marital relationship.
Example: If the wife cheated on the husband and husband became aware of the affair but later resumed the relationship and continued to live with the wife, the affair could not later be used as grounds for a divorce since husband became aware of it, forgave wife, and continued the relationship.
3. Connivance: a complete defense to claims of adultery. Connivance alleges that the party complaining of infidelity agreed to or participated in the infidelity.
Example: If husband and wife had an open relationship and were bringing third parties into their relationship, then wife could not then claim infidelity as the grounds for a fault-based divorce because she had also participated in the infidelity.
4. Provocation: when one spouse provokes or entices the other spouse to behave in a certain way.
Example: If husband is abusive to wife and provokes wife into leaving and moving out, husband cannot then claim wife was at fault for abandoning husband. Husband’s acts encouraged and provoked wife to remove herself from the residence for her safety and, therefore, she is not at fault for leaving because of his actions.
While abandonment is grounds for a fault-based divorce, since husband provoked wife to leave, she is not at fault. If wife wants a divorce, however, she can claim husband is at fault for his abusive actions and obtain a fault-based divorce against husband.
5. Recrimination: when the accusing spouse is equally at fault or acted in a similar way.
Example: If husband and wife are both engaging in affairs, regardless of whether either was aware that the other was engaging in such behavior at the time they decided to have an affair, neither can request a fault-based divorce on the grounds of the infidelity of the other.
Since both were equally at fault, then neither can claim the affair of the other was the cause of the demise of the marriage.
However, if both spouses were engaging in affairs but one spouse also was abusing the other, then the abuse alone would stand as grounds for the divorce. In effect the similar acts cancel each other out and the court will look to other claims of fault.
If you are defending yourself from fault, your best course of action would be to consult with a mens divorce attorney that exclusively practices domestic litigation to learn the best ways to protect yourself.