Rose had spoken quietly with her best friend on a couple of occasions, sharing that she was thinking of divorcing her husband of ten years. At first, her friend had just listened sympathetically. She was aware that Rose hadn’t been happy in the marriage for years. But Rose was taken aback when her friend had soon asked if Rose had grounds for divorce. Wasn’t that old fashioned? Couldn’t you divorce these days simply if you were unhappy? Rose didn’t know how to answer her friend’s question about grounds for divorce. But Rose had a nagging suspicion that whether she needed legal grounds for a divorce or not, others besides her friend would probably be asking the same question.

No Fault

Most people seem to be aware that couples getting a divorce used to need grounds for divorce but don’t need grounds so much anymore. When famous Hollywood couples of the past faced rumors of a pending divorce, the tabloids would speculate as to which of them would accept the fault to admit the statutory divorce grounds, typically abuse, adultery, or neglect. Law and society wanted a reason for the divorce, grounded in the wrong that one spouse committed against the other. But everyone knew that the pleading could in any one case be more to satisfy convention than to establish a fact. If law and society demanded grounds, then divorcing couples would give grounds to them, manufactured or not. Yet then came the no-fault divorce revolution, beginning around the time of the late-1960’s sexual revolution. It took a few decades, three in fact, before all fifty states offered divorce without a stated grounds nested in one spouse’s or the other spouse’s fault. The spouses only needed to claim the marriage’s breakdown.

Fault

Some states, though, retained or restored a fault option. In those states, the parties may, if they wish, avoid addressing one another’s fault and still get a divorce by testifying to a breakdown in the marriage. But in states retaining or restoring a fault option, divorcing spouses have the choice of going ahead with the accusations, whether of adultery, abuse, neglect, abandonment, or a similarly serious marital wrong. Why, you might ask, get into it? Why not keep it all private? The answer depends on the parties and their values, needs, and community. Individuals rightly uphold their values and stand on commitments, including commitments to marriage. When instead a marriage ends, those individuals may want to establish for their own satisfaction or reputation that they remained committed to the ideal, but the other’s fault ruptured the ideal so badly that the marriage had to end. Divorce doesn’t have to get ugly. Sometimes, the ugly stuff might better remain between the divorcing spouses, especially when the ugliness is roughly equal. But when awful wrongs end a marriage, it may help the wronged spouse and that spouse’s reputation and relationships to disclose it publicly. Grounds for divorce can thus matter both personally and socially.

Effect

In even more states, fault in the marriage’s breakdown could affect other issues. For one, fault like domestic abuse or abandonment could affect child custody and parenting time. A spouse who abuses the other spouse might also be a danger to the children and thus an unfit custodial parent. The same could be true for a spouse who abuses the other spouse in front of the children, that the abusive spouse might make an unfit custodial parent. Abuse, neglect, and abandonment could also affect a property division or even spousal support. An abusive spouse who leaves the abused spouse injured might owe more property or spousal support to ensure the abused spouse’s reasonable survival in another home. A neglectful spouse who leaves the neglected spouse destitute might likewise owe more property or support to make up for the destitution. Fault can make differences in outcome. Justice may be blind to race and ethnicity but not to injustice, need, and equity. Punishment may even be behind some part of that judgment. Why not make the abuser pay, at least a little?

Mud

On the other hand, spouses considering asserting the other spouse’s fault in hastening the marriage’s breakdown should know in advance that many family law judges hesitate to entertain fault allegations. It’s not that these judges will necessarily refuse to listen to fault claims. It’s instead that they’ve seen too many cases where the moment one spouse casts blame, the other spouse tends to cast blame right back, in equal measure. Informally, judges may call it slinging mud, where everyone, not just the wrongdoer, gets dirty. In the worst cases where one spouse badly abuses or otherwise wrongs an entirely or mostly innocent spouse, judges may need to listen carefully to the fault evidence and rule accordingly. But beware the boomerang effect, that those fault claims can come zinging right back, making even the mostly innocent look less so. 

Allegations

Allegations of grounds for divorce and other wrongdoing typically appear first in the divorcing spouse’s pleadings. The filing spouse may include the fault allegations in the divorce complaint. The responding spouse may answer by admitting or denying the fault allegations but may also answer or even counterclaim for divorce by adding fault allegations of their own. Pleadings don’t have to go into detail. They need only put the opposing party on notice of the claims and counterclaims that the parties intend to prove. Traditionally, pleadings recite grounds and fault allegations in generalities more so than specifics. But even generalities, like adultery, physical and mental abuse, and abandonment and neglect can look harsh and deeply troubling and embarrassing, especially insofar as pleadings are public documents kept in perpetuity. Parties can preserve or lose reputations and careers with the allegations they choose to include in or exclude from the pleadings. Don’t destroy your spouse’s reputation and career out of spite. You may be far better off financially and in other ways by preserving your spouse’s reputation, even if it means holding back on true but damaging allegations.

Details

The details of allegations tend to come out in discovery, assuming that the parties engage in discovery. If you’re wondering how you can find out more about your spouse’s wrongdoing, or your spouse can find out more about yours, the answer is through written interrogatories and oral depositions (recorded interviews under oath). You and your attorney can require your spouse to answer pointed questions, in writing and on the spot orally, about anything relevant to the divorce. Those questions could in some cases include aspects of fault such as adultery, abandonment, abuse, drug deals or addictions, alcohol abuse and binges, secreting and concealing marital accounts, and hiding property or business interests. Unlike pleadings, discovery materials are generally confidential between the parties, at least until one side or the other decides to make use of the information in or outside of court. As you can imagine, things can get ugly quickly.

Abuse

Consider a few words about abuse as a ground for divorce. No marriage should be abusive. Some marriages are. Abuse, of course, can take both physical and mental or emotional forms. Judges generally regard physical abuse as much more serious. Judges are likely to swiftly agree that any degree of unwanted traumatic contact, especially contact resulting in injury, is abuse. On the other hand, the vagaries of life and marriages make some degree of mental or emotional conflict common in marriages. Arguing and even yelling can certainly feel mentally or emotionally abusive, just as can some kinds of mental or emotional manipulation. Judges, though, are generally much less likely to equate mental or emotional conflict with abuse, especially physical abuse. Threats of physical harm are abusive. Judges are much less likely to recognize harsh words, the silent treatment, and similar unkindnesses as abuse. Judges, of all people, have in court testimony heard about a lot worse.

Adultery

Likewise consider a few words about adultery as a ground for divorce. Adultery is wrong, plain and simple. Adultery not only violates the exclusive-devotion commitment expressed and implied in marriage, breaking a vital trust at the deepest level. Adultery is also unsafe from a physical health standpoint. I have represented multiple spouses who contracted a sexually transmitted disease due to their spouse’s unfaithfulness. You may find yourself compelled, for one reason or another, to go down the road of proving your spouse’s infidelity in a divorce proceeding. Just be aware that the road is a two-way street. If you insist on asking for that information under oath in discovery, then your spouse may ask you, too. Don’t cast stones if living in a glass house, right? Even if the infidelity was not mutual and instead on only one side, an adulterous spouse will often assert an excuse for the infidelity, trying to cast blame back on the faithful spouse. Those counter-allegations can hurt and stain, too. Be cautious with adultery allegations, just as with allegations of abuse.

Others

Other traditional grounds exist for divorce. Abuse sometimes goes by cruelty or mistreatment, as a ground for divorce. Abandonment can go by desertion or gross neglect, as a ground for divorce. Criminal conviction leading to imprisonment can be another ground. The dangerous grounds for the conviction, such as violence, drug dealing, and sexual assault, may underscore abuse, cruelty, and mistreatment in the marriage, while the fact of long-term incarceration equates to neglect and abandonment. And then there are welfare and moral grounds for divorce, like habitual drunkenness, habitual gambling and related profligacy, severe mental delusion, or a secret second marriage or open bigamy. Fraud in the inducement is yet another traditional ground for marriage, meaning lies that caused the innocent spouse to agree to the marriage. Those lies may conceal former marriages ending in abuse, vast debt, or criminal convictions, or exaggerate education, income, assets, and accomplishments. 

Breakdown

Ultimately, though, the ground that one spouse or the other must generally allege in the divorce complaint and testify to at the final hearing or trial is the marriage’s irretrievable breakdown, already once mentioned in a prior chapter. State statutes and court opinions can vary on exactly what phrase they use to describe the marriage’s practical end, such that the parties can no longer attain its object. Irreconcilable differences, insupportability, and incompatibility are associated terms and phrases, as are phrases like no reasonable likelihood of the marriage’s preservation, so dysfunctional that it cannot be sustained, and no reasonable likelihood of reconciliation. These are not words and phrases in common usage. They are instead legal terms and phrases. Don’t expect to have to memorize them or even read them for your recital. Typically, your attorney will ask you, while you are under oath briefly on the witness stand, whether your marriage has suffered such a breakdown, requiring only that you answer truthfully in the affirmative. 

Ruling

Keep in mind one note about divorce grounds that may not yet be obvious. If one spouse or the other testifies that the marriage is irretrievably broken, then the judge is nearly certain to grant a divorce. The fact may be that the parties could fix the marriage. But if at least one spouse attests in the complaint and then testifies at the final hearing otherwise, that the marriage is instead broken beyond repair, then the judge will almost surely rule so, granting the divorce. Judges are not in the habit of forcing parties to remain married. It just doesn’t happen in any usual course. In that respect, marriages end when either party says so, not when both parties agree. If you are dead set against divorce, then remain so. Yet depending on what your spouse does, you may end up divorced anyway. And that outcome, that you stood on your vows to the end even if in the end your doing so didn’t save your marriage, may be the best that you could have done.

Goal

So, there you have a discussion of divorce grounds. You’ve seen that grounds can be critical in deciding whether to divorce, articulating to others why you are divorcing, and in some cases gaining hugely important child custody or property division outcomes. Yet don’t get lost in the grounds. Instead, keep in mind your goal in a divorce proceeding, whether you initiate and pursue it your spouse does so. Think of goals more than grounds. Grounds look back at what you cannot change. Goals look forward to what you might accomplish. As soon as you become intent on proving grounds for divorce, the marriage is probably over, irretrievably broken. When instead you focus on goals, who knows what might happen? You might make the divorce proceeding more tolerable and manageable, while reaching a better divorce outcome. Or you might even save  your marriage. Just because parties file for divorce doesn’t mean they must go through with it. I’ve helped several couples who reconciled in the course of the divorce proceeding. And good for them. May it likewise go well for you, whatever is your ultimate course.

Key Points

• All states permit no-fault divorce, although some with a fault option.

• States require testimony of the marriage’s irretrievable breakdown.

• In some cases, fault can affect child custody and property division.

• Judges resist considering fault when both parties appear at fault.

• Divorce complaints plead general rather than specific fault allegations.

• Parties can gather evidence of fault through written and oral questions.

• Abuse and adultery are common divorce grounds, among others.

• One party testifying the marriage is broken is enough for divorce.

• Courts do not generally force parties to remain married.

• Prioritize your goal in a divorce proceeding over divorce grounds.

Read Chapter 5.