Divorce Fault Grounds (part 2 of 3)

A fault-based divorce may only be obtained by an innocent party.  Several defenses are available to a party against whom a fault ground has been asserted, including: recrimination, condonation, innocence, connivance, insanity and provocation.  The available defenses to fault are as follows:

  • Innocence. The defense of innocence is, quite obviously, an assertion that the spouse did not engage in the act alleged.
  • Provocation. A party cannot assert a fault ground that is premised on conduct that occurred as a result of the fault-asserting spouse’s misconduct.
  • Recrimination. “[A] spouse who is guilty of an offense against the other spouse, which would be grounds for divorce, cannot himself obtain one” on fault grounds because of the doctrine of recrimination.  For example, if both spouses were engaged in extra-marital affairs, neither could allege fault.
  • Connivance. If a party passively or actively aided in the accomplishment of the fault-related conduct, or assented to it, then the defense of connivance is available.
  • Insanity. Insanity at the time of the commission of the act(s) constituting the fault ground for divorce is an affirmative defense to the alleged fault.
  • Condonation. The defense of condonation may be available if a party can prove the full, free and voluntary forgiveness of a previous “matrimonial offense on the condition that it would not be repeated.”  Forgiveness based on condonation is conditional, the condition being that the party at fault must be guilty of no further misconduct.  Should additional misconduct occur, the original offense and subsequent offense are available as fault grounds for divorce.

The court must determine a single and primary cause for the breakdown of the marriage, whether irreconcilable differences or a fault ground.  A court cannot find that multiple fault grounds caused the breakdown of the marriage.  Similarly, a court cannot find that both fault and irreconcilable differences caused the breakdown of the marriage.  The court is legally required to find the primary cause of the breakdown of the marriage and declare that to be the reason for the parties’ divorce.

About the Author: Margaret Kerouac

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