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Grounds for divorce are regulations in each state of the United States that specify under what circumstances one party can be granted a divorce. In some jurisdictions, the couple must live apart for several months before being granted a divorce.

There are certain types of divorce that differ by how divorce is legally defined, and others that deal with the dissemination of funds.

No fault divorce

Currently, all states have a commonly referenced no-fault divorce. A no-fault divorce allows a person to get a divorce just because the parties no longer want to be married. In a no-fault divorce, a person testifies that their marriage is irretrievably broken (your state might not use irretrievably). Some states, as an example, will use incompatibility, or irrevocable (just make sure you use the same language as your state). In a brief manor a person would inform the judge why they would not want to be married anymore. In some states, and in some type of consent procedures, the person's spouse may need to say the same thing. If there is a requirement for a separation period, that person may need to bring a witness to testify that the parties have been living apart for the required amount of time.

Separation

Separation and living apart is considered a no-fault ground for divorce in many states. Most statutes require the parties to live apart for a certain consecutive period of time ranging from 6 months to 3 years. Multiple states also require that the time spent apart from both the spouses be voluntary or consensual. The reason for the time limitation is to force the parties to seriously think if a reconciliation is possible.

Irretrievable breakdown

A majority of states will allow a party to divorce if there has been an "irretrievable breakdown of the marriage relationship". However, different states will use different terminologies-- for example "irreconcilable differences" or "incompatible of temperament" maybe used to depict this ground for divorce. Regardless of the dialect used, all of these states will fundamentally allow a party to divorce if the marriage had been broken down and it is understood that there will be no reconciliation for both parties. In order to attain a divorce on grounds of irretrievable marriage breakdown, all one is required to do majority of the time is that one spouse will have to state under oath that there marriage is irreparably broken. An alternative is that both spouses can agree in writing that their marriage is broken beyond repair.

State acceptance

Presently, all states recognize some type of no-fault divorce. If the decision is made that a no-fault divorce is best for your party. Neither party has to prove that there spouse did anything to cause this divorce. All that needs to be done is that one member from the party needs to acknowledge that things did not work out between both spouses. The mutual understanding to attain a no-fault ground divorce comprise of "incompatibility," "irretrievable breakdown," or "irreconcilable differences." A no-fault divorce is generally less expensive, quicker to complete, and easier on the spouses and their children because no proof is needed. In conclusion, a no-fault divorce are highly customary compared to fault divorces.

Shift of acceptance

In 1970 California was the first state that started the no-fault reform that took the United States by storm. Within 15 years the legal system was dramatically altered. When California decided to improve its law, it essentially choose to terminate all fault grounds and replace them with a single no-fault standard. A compelling amount of states followed California's lead and now only have no-fault grounds. However, a majority of states decided to keep their existing fault grounds and just added no-fault ground provisions. Which then created a dual system of divorce.

Gains from a marriage can be smaller today for a majority of couples than they were in the past, a concerning question to ask would be, does one party still want to make a long term commitment to this other party? During this evaluation period, no-fault divorce should continue to be the grounds for divorce. Usually in a marriage, one spouse could make more sacrifices during the long-term in order to be more committed to the marriage. When this happens, it appears that the grounds for divorce will or could shift to mutual consent. All the sacrifice one makes depicts the cost of change. The circumstances that occur with the changes in the parties provide the grounds for divorce and opens a pathway to a mutual divorce. The reason for the change is due to the fact that a party adapts toward the long-term benefit of the marriage and one may not even notice a change, setting a predetermined period, such as 5 years, as the basis for the shift from no-fault divorce to mutual consent divorce and that is more reasonable to the split.

Pros and cons

Multiple surveys have been given out to the American people to collect their thoughts on no-fault divorce. The results of the survey revealed that the Americans are not happy with the no-fault divorce and are in favor of changes that would make divorces more difficult to obtain. Economist Robert Rowthorn disagrees that no-fault divorce impairs the commitment that is the key to the nature of marriage. The principal of this argument is that marriage, similar to a business partnership, is an institution of trust which enables two people to have the confidence to make long-term investments in their relationship. Wardle argues, after multiple surveys of Americans opinions, Americans feel divorce is too easy, notably couples that are divorcing with children. At the turn of the millennium, Wardle also states that some type of reform will be accepted in many states within the next decade.

Ira Ellman has focused on and criticized four principal arguments of fault-based divorce. The four arguments are: 1) No-fault divorce causes an increase in divorce; Ellman finds no crucial evidence to support this. 2) Fault base divorce has a hindrance effect on marital misconduct. 3) No-fault divorce leads to unjustified outcomes in property allocations and alimony awards. 4) No-fault divorce is a condition of wider cultural changes that reflect immoral thinking about marriage and families. Ellman states none of these arguments are well founded.

Fault divorce

A fault divorce is a divorce granted on the grounds that one party in the divorce is considered to be at fault of specific wrong doings. The party filling for the divorce must prove that the other party has done something to justify ending the union. Different states have different requirements for obtaining a fault divorce but in each state the spouse filing for the divorce is required to establish a reason for the divorce and provide evidence of the other parties’ guilt. The specific grounds for receiving a fault divorce include adultery, impotency, infertility or homosexuality of the other party that was not discussed before the union; criminal conviction of a felony or imprisonment of one party for a certain length of time; abandonment or desertion, cruelty, or mental instability of one of the parties.

Divorce courts require proof be given that the grounds actually exist; this can be accomplished by providing testimony from a hired detective with documentation of the spouse’s bad behavior or from someone who witnessed or has first-hand knowledge of the spouse’s bad behavior. There are defenses a spouse can use to convince the court that he or she is not at fault in order to have the grounds dismissed and possibly prevent a fault divorce. These defenses include collusion, condonation, connivance, and provocation.

Fault divorces are becoming less common today because almost every state now recognizes no-fault divorces. No-fault divorces are less expensive, easier to obtain, and less stressful on the spouses and their children because they do not require one to prove fault. However, fault divorces are advantageous if a quick divorce is desirable; this type of divorce is granted quickly without the waiting period of no-fault divorces where parties are ordered to live apart for a specific amount of time before the divorce is finalized. Another benefit of a fault divorce is the monetary gain; proof of the accused party’s wrongdoing may result in the court granting the filing spouse a larger portion of the marital property or increased support and alimony. However, fault divorces are considerably more expensive to obtain than no-fault divorces.

The most common fault grounds include the following:

Adultery

Sexual activities with a person of the opposite sex as well as the same sex involving oral sex and other sexual behavior not necessarily including intercourse constitute adultery. To obtain a divorce on grounds of adultery the accusing party must present proof that their spouse voluntarily engaged in sexual relations with someone else. Circumstantial as well as documented evidence including videotapes of the spouse committing the sexual infidelity can be used as proof of adultery. The accusing partner must prove that the other partner had the opportunity and inclination to commit adultery.

Cruelty

Proof of cruelty or the repeated infliction of serious physical or mental suffering by one marital partner on the other is also grounds for divorce. To obtain a divorce on the grounds of cruelty the filing spouse must prove that the cruelty has made marriage intolerable for them. The cruelty must have been deliberate and calculated and must not have been provoked by the filing spouse. Acts such as physical attacks, repeated displays of rage involving screaming and violent behavior, as well as continuous false accusations adultery and publicly berating and insulting a spouse or flaunting an affair with another person are some grounds of cruelty. The cruelty must have been recurrent; single acts of cruelty in a marriage are usually not considered grounds for divorce.

Abandonment or desertion

Leaving the household with the consent of the filing spouse or for reasons not related to the marriage like completing military service or employment assignments does not constitute abandonment or desertion. Refusing to have sexual relations with a spouse can also be considered abandonment in some incidences. To obtain a divorce on grounds of abandonment the accused spouse must have voluntarily deserted the marital household with no justification or intention to return. The deserter must have left without the consent of the filing party and remained absent for an uninterrupted period of time. However, a spouse who is unjustly forced from the marital household by the other spouse or leaves to escape domestic violence would not be at fault of abandonment or desertion. In fact in these cases the spouse who remains at the home may be charged with abandonment if their behavior justifies the charge or if that spouse refuses a sincere offer of reconciliation.

Mental illness

Permanent mental illness and incurable insanity is a ground for divorce. To obtain a divorce on grounds of mental illness the filing spouse must have proof that the other spouse suffers from a permanent psychological disorder which makes marriage impossible. The disorder must be incurable and the spouse must have been diagnosed by doctors competent in psychiatry.

Criminal conviction

The criminal conviction and imprisonment of a spouse is often considered grounds for a divorce. To obtain a divorce on grounds of criminal conviction the filing spouse must be able to prove that their spouse has been convicted of an illegal offense. In many cases it is required that the convicted spouse has been sentenced to serve time in prison in order for a divorce to be granted on the grounds of criminal conviction.

Other grounds for divorce may include; alcohol or substance abuse and impotency, infertility or homosexuality of the other party that was not discussed before the union.

Other grounds

Research has shown that sexual compatibility is strongest in relationships whose partners are about ten years apart. Given that the average age difference between the members of most couples is smaller than this (by about two to five years), it is no wonder that impotency is a concern for many. Once the hitched pair reaches their third decade, their sex drives tend to desynchronize. Other sexual incompatibilities, such as difference in preferences, worsen the issue. Based upon this consistency problem, couples are able to file for divorce.

Marrying someone of a different religion, ethnicity, or vastly different culture could also pave the way for divorce. One partner may find himself/herself unable to handle the societal pressures of the arrangement, or may feel pressured to conform to the spouse’s/other culture’s ideals (e.g. child rearing, dietary changes, etc.), which could lead to resentment. In New Hampshire, one unusual ground for divorce is an option for someone whose other half has joined a religious sect that destroys the marriage.

Defenses

The accused was not at fault

In some cases a spouse can prevent a fault divorce by convincing the court that he or she is not at fault. Defenses commonly used to prevent a fault divorce are:

Condonation is used as a defense when the accusing spouse claims that the filing spouse has actually forgiven or accepted the wrongful behavior of their spouse prior to filing the charges and has in fact continued to have relations with them.

Reconciliation, like condonation, is used by the accused spouse to prevent a fault divorce when they can prove that the filing spouse has forgiven them and reconciliation has occurred.

Recrimination is when the spouse who is being accused of wrongdoing attempts to stop the divorce process by claiming that the other spouse is guilty of bad behavior themselves.

Provocation is used when the spouse accused of abandoning the marriage defends the suit on the ground that the filing spouse provoked the abandonment.

Spouses were not actually separated for the requisite period of time

Possible reconciliation

The defense for reconciliation impedes one spouse from acquiring a divorce on fault grounds after he/she has already forgiven the other spouse for the conduct at issue. For example, a spouse will not be able to acquire a divorce on the grounds of the other spouse's abandonment if the party reconciled after the abandonment; the reason is that the other spouse has forgiven the other spouse for leaving.

References

1. ^ Haman, Edward A. (2001). How to file your own divorce : with forms (4th ed.). Naperville, IL: Sphinx Pub. p. 31. ISBN 1-57248-132-3.
2. ^ Statsky, William P. (2004). Family law : the essentials (2nd ed.). Clifton Park, NY: Thomas/Delmar Learning. p. 89. ISBN 1401848273.
3. ^ Choudhri, Nikara K. (2004). The complete guide to divorce law. New York: Citadel Press. p. 9. ISBN 0806525282.
4. ^ Ventura, John (2009). Divorce for dummies (3rd ed.). Hoboken, NJ: Wiley Pub. p. 16. ISBN 978-0-470-41151-3. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
5. ^ Ehrlich, J. Shoshanna (2008). Family law for paralegals (4th ed.). New York, NY: Aspen Publishers/Wolters Kluwer. p. 163. ISBN 0735563829.
6. ^ Parkman, Allen M. (2000). Good intentions gone awry : no-fault divorce and the American family. Lanham, Md.: Rowman & Littlefield. p. 190. ISBN 0847698696.
7. ^ Cruz, Peter de (2010). Family law, sex and society : a comparative study of family law. London: Routledge. p. 88. ISBN 0415484308.
8. ^ Choudhri, Nikara K. (2004). The complete guide to divorce law. New York: Citadel Press. p. 8. ISBN 0806525282.
9. Statsky, William P. (2008). Family law (5th ed.). Australia: Delmar Cengage Learning. p. 187. ISBN 0766833585.
10. ^ Statsky, William P. (2008). Family law (5th ed.). Australia: Delmar Cengage Learning. p. 188. ISBN 0766833585.
11. ^ Choudrhi, Nihara (2004). The Complete Guide to Divorce Law (1st ed.). New York, NY: Kensington Publishing Corp. p. 10. ISBN 0806525282.
12. ^ Choudhri, Nikara K. (2004). The complete guide to divorce law. New York: Citadel Press. p. 11. ISBN 0806525282.
13. Nelson; Henderson (1895). A treatise on the law of divorce and annulment of marriage. Vol. 1. Callaghan. pp. 444–468. Retrieved 9 October 2011.
14. Nelson; Henderson (1895). A treatise on the law of divorce and annulment of marriage. Vol. 1. Callaghan. p. 500. Retrieved 9 October 2011.
15. Nelson; Henderson (1895). A treatise on the law of divorce and annulment of marriage. Vol. 1. Callaghan. pp. 420–443. Retrieved 9 October 2011.
16. Nelson; Henderson (1895). A treatise on the law of divorce and annulment of marriage. Vol. 1. Callaghan. pp. 87–91. Retrieved 9 October 2011.

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