Grounds for Divorce
Author | Richard Leiter |
Pages | 441-458 |
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The bond of marriage and the nuclear family unit were thought to be sacred unions to be preserved at all costs. Divorce was a stigma and a “bad” marriage was a thing to be endured for the sake of the family and, in particular, the children. However, the last 40 years has seen a remarkable shift in emphasis in the area of divorce.
Originally, in order to obtain a divorce the pleading party had to show fault on the other side of the marriage, proving that the spouse had committed some act or activity believed ruinous to the marital relationship, such as adultery, cruelty, or desertion. The other party could then counter by proving fault in the pleading spouse or that the alleged activity did not occur. Fault was important not only in obtaining the divorce, but also in factoring property divisions and alimony.
No-fault divorce is the relatively recent invention of legislators who deemed it necessary in order to allow women to free themselves from destructive marriages. Under no-fault divorce, a party does not need to prove any fault; all that is required is to claim that there exists irretrievable breakdown or irreconcilable differences between the spouses or desertion. The pleading party in a divorce action merely needs to claim that she or he is so unhappy that leaving home (or “constructive desertion”) or dissolving the marriage is the only solution.
All states have adopted no-fault divorce, either as the only grounds for divorce or as an additional ground. As a practical matter, however, the other grounds are seldom used owing to the difficulty of proving things like adultery, mental cruelty, and the like. These are only used in situations where proof of fault will affect the court’s decisions with regard to the distribution of property, alimony, or child custody. Thus, only about 10 percent of divorces actually go to trial today.
In the accompanying table, the No-Fault column lists the particular type of no-fault statute that exists in the state. If there are no items listed under Grounds, then no-fault is the only ground for divorce in that state. If grounds are listed, no-fault is simply an additional available ground.
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Table 29: Grounds for Divorce | ||||||
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State | Code Section | Residency | Waiting Period | No Fault | Defenses | Grounds |
ALABAMA | 30-2-1 to 12 | At least one party must be resident and must have resided 6 months prior to filing. | 30 days from date of the filing of the summons and complaint. | Irretrievable breakdown; separation (2 yrs.). | Condonation (not if parties connived to commit adultery), Collusion. | Adultery; cruelty or violence; drug/ alcohol addiction after marriage; insanity (in mental hosp. for 5 successive yrs.); pregnant at time of marriage without husband’s knowledge; imprisonment for 2 yrs. if sentence is 7 yrs. or longer; crime against nature with mankind or beast before or after marriage; incompatible temperaments; voluntary abandonment from bed or board for 1 yr.; wife lived apart for 2 years without husband’s support while she’s residing in state; at time of marriage, incapacitated from entering married state. |
ALASKA | 25.24.050; 25.24.080; 25.24.120, 130, 200, 210 | Plaintiff must be resident for any amount of time. | For adultery, procurement, connivance, express or implied forgiveness, dual guilt, or waiting over 2 yrs. to bring action; procurement or express forgiveness is defense to any other ground. | Adultery; cruelty or violence; willful desertion for 1 yr.; drug/alcohol addiction; conviction of felony; failure to consummate; incompatible temperament; incurable mental illness (confined to institution for at least 18 mos. prior to divorce action). |
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State | Code Section | Residency | Waiting Period | No Fault | Defenses | Grounds |
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ARIZONA | Uniform Marriage and Divorce Act §§25-311 et seq. | One party must be Arizona domiciliary and presence has been maintained 90 days prior to filing for divorce. | If one party denies that marriage is irretrievably broken, court may order conciliation conference and matter is continued for 60 days; at next hearing, court makes finding whether marriage is broken as a result of “no reasonable prospect of reconciliation.” 25-316 | Irretrievable breakdown; separation (both parties must consent and relationship must be irretrievably broken). | Only defense is that marriage is not irretrievably broken. | Only requirement is that relationship is irretrievably broken and the court has made provisions for child custody, support, disposition of property, and support of spouse. Covenant marriage: adultery, conviction of felony, abandonment for one year; sexual abuse; living apart for 2 yrs., or 1 yr. after legal separation; drug/ alcohol abuse; both spouses agree. |
ARKANSAS | 9-12-301, 307, 308, 310 | One party must be resident at least 60 days before action and a resident 3 months before final decree granted. | 30 days from filing for decree (except in willful desertion for 1 year of continuous separation). | Separation:-(lived separate and apart for 18 mos.). | Collusion, consent or equal guilt in adultery. | Impotence; conviction of felony or infamous crime; habitual drunk for one year or cruel and barbarous treatment or offers indignities; adultery; separate for 18 continuous months; committed for 3 yrs.; and where either spouse legally obligated to support other and having ability to provide common necessities, willfully fails to do so. |
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State | Code Section | Residency | Waiting Period | No Fault | Defenses | Grounds |
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CALIFORNIA | Family Code §§2310 et seq. | One party must have been resident 6 months and for 3 months in county where action is filed. | If it appears there is a reasonable possibility of reconciliation, proceeding may halt for up to 30 days; no decree is final until 6 months from service or respondent’s appearance, whichever is first. | Irreconcilable differences; incurable insanity. | See “No Fault” | |
COLORADO | Uniform Dissolution of Marriage Act §§14-10-106, 120.3 | One spouse domiciliary for 90 days preceding commencement of action. | Decree may be entered 90 days after service of process or appearance of respondent, if one party denies marriage is irretrievably broken, court may continue matter for 30-60 days. | Irretrievable breakdown. | Lack of jurisdiction. | |
CONNECTICUT | 46b-40, 44, 67 | Resident for 12 months before filing or 1 party domiciliary at time of marriage and returned with intent to stay or the cause for dissolution occurred after either moved to the state. | 90 days. | Irretrievable breakdown; separation (lived apart for at least 18 mos. prior to complaint). | Adultery; cruelty or violence; willful desertion for 1 yr.; drug/alcohol addiction; insanity; unexplained absence for at least 7 yrs.; conviction of infamous crime; fraudulent contract; legal confinement for mental illness 5 out of last 6 yrs. |
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State | Code Section | Residency | Waiting Period | No Fault | Defenses | Grounds |
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DELAWARE | Tit. 13 §§1503, et seq. | Action brought where either party is a resident for 6 months or longer. | Decree final when entered subject to right of appeal within 30 days. | Irretrievable breakdown; voluntary separation. | Defenses of condonation; connivance, recrimination, insanity and lapse of time are preserved only for a marriage that is separated and the separation caused by misconduct; respondent’s failure of jurisdictional/ residential requirements. | Separation caused respondent’s misconduct, mental illness or incompatibility. |
DISTRICT OF COLUMBIA | 16-901, et seq. | One party bona fide resident for 6 months. | 30 days after docketing of decree or judgment subject to right of appeal. | Voluntary separation (6 months) or separation for 1 yr. without cohabitation. | ||
FLORIDA | 61.021, 052, 19 | Petitioner must have residence in Florida 6 months before filing suit. | 20 days after petition filed. | Irretrievable breakdown; mental incapacity of one or the parties. | Condonation, collusion, recrimination, laches abolished. | Mental incapacity of one party for preceding period of at least 3 yrs. |
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State | Code Section | Residency | Waiting Period | No Fault | Defenses | Grounds |
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GEORGIA | 19-5-2-19-5-4 | One party resident for 6 months before action. | Decree in effect immediately except for irretrievable breakdown, in which case court may not grant divorce in less than 30 days from service on respondent. | Irretrievable breakdown. | For adultery, desertion, cruelty, or intoxication: collusion, both parties guilty, subsequent voluntary condonation and cohabitation, consent. | Adultery; cruelty or violence; willful and continued desertion for at least 1 yr.; drug/ alcohol addiction; impotency; mental incapacity or insanity; pregnant at time of marriage by man other than husband; conviction of crime for which the sentence is 2 yrs. or more; force, duress, or fraud in obtaining marriage; irreconcilable differences; intermarriage within prohibited degrees of consanguinity or affinity. |
HAWAII | §§580-41 et seq. | One party domiciled or physically present 6 months before filing. §580-1 | Court fixes time after decree that it is final but not over 1 month. | Irretrievable breakdown; separation (for at least 2 yrs. or under decree of separation). | Recrimination no defense. | See “No Fault” |
IDAHO | 32-601 et seq. | Plaintiff must be resident for 6 full weeks before commencing action. | Decree entered immediately on determination of issues (for adultery, within 2 yrs., for |
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