Fault vs. No-Fault Divorce


Divorce by consent (no-fault):
Type of no-fault divorce in which parties are not required to prove fault or grounds for divorce beyond a showing of irretrievable breakdown of marriage or irreconcilable differences. The majority of states have no-fault divorce statutes in one form or another.

Uniform Marriage & Divorce Act:
This Act is a comprehensive marriage and divorce act. It minimizes the number of prohibited marriages and includes the concept of no-fault divorce. It was initially promulgated by the National Conference of Commissioners on Uniform Laws in 1970.

Fault Divorce

Due to a state’s interest in the marital status of its residents, all state legislatures have passed laws governing the grounds on which a divorce will be granted. If the complaint does not contain a ground for divorce recognized under the statute, the divorce will not be granted.

Grounds for Divorce

A divorce will be granted for reasons which are typically enumerated in each state’s statutes. For example, under New York law, there are six grounds for divorce. The first four grounds are based on fault of one of the parties. The last two grounds are New York’s form of no-fault divorce.


  1. Cruel and inhuman treatment;

  2. Abandonment or desertion of the plaintiff by the defendant for a period of one or more years;

  3. Confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant;

  4. Adultery;

  5. The husband and wife have lived apart pursuant to a decree or judgment of separation granted by a court for a period of one or more years after the granting of such decree or judgment;

  6. The husband and wife have lived separate and apart pursuant to a written Separation Agreement, which must be filed with the office of the county clerk where the parties reside before the requisite one-year separation period begins.

See N.Y. Dom. Rel. § 170.

A plaintiff seeking a divorce for cruel and inhuman treatment must show serious misconduct and not mere incompatibility. The conduct must be so harmful to the physical or mental health of the plaintiff, that continued cohabitation is unsafe. As a fault-based ground, a mere showing of irreconcilable differences is insufficient. Furthermore, in a marriage of long duration, there is a higher burden of proof for cruel and inhuman treatment. Length becomes a factor because something that might be considered substantial misconduct early in the marriage may be considered transient discord in a long-term marriage. See, e.g., Brady v. Brady, 64 NY.2d 339, 486 N.Y.S.2d 891, 476 N.E.2d 290 (N.Y. 1985).

Desertion or abandonment is the voluntary separation of one spouse from the other with the intent to desert. The desertion must continue for the statutory period, frequently one year. Once the parties separate, the period of separation must run without interruption; a temporary reconciliation will cause the clock to restart. Yet, a single instance of reconciliation may not defeat the plaintiff’s cause of action for abandonment.

In addition to actual abandonment, courts will consider constructive abandonment as well. Constructive abandonment occurs when a husband and wife live in the same household, but abandon their marital relationship by ceasing cohabitation (usually done by discontinuing sexual relations). In a constructive abandonment, there are still issues of consent (i.e., did both parties mutually consent to the cessation of their sexual relationship). Given the lack of witnesses, proving this element becomes more difficult. Constructive desertion is both a defense (discussed later) to an allegation of desertion and a ground for divorce by the spouse who leaves.

Example: Daniel and Tara are married. Tara gets drunk frequently, fights with Daniel and insults him in public and private by calling him a homosexual. In addition, she refuses his sexual overtures. One day Daniel gets fed up with Tara’s behavior and brings an action for divorce for desertion. Daniel is granted a divorce. Tara’s behavior, which is persistent and intolerable to the other party of the marriage, will warrant a finding of constructive desertion. See, e.g., Liccini v. Liccini, 258 A.2d 198 (Md. 1969).

In New York, adultery is defined as the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff, during the marriage of plaintiff and defendant. See N.Y. Dom. Rel. § 170(4). To successfully prove adultery, circumstantial evidence is sufficient. For instance, a party can establish adultery by showing that the other spouse and the alleged paramour had a mutual affection for each other, coupled with an opportunity to commit adultery.

Example: A husband proves his wife’s adulterous behavior in court by submitting evidence given to him by a private investigator showing that his wife’s alleged lover visited her at home almost daily from early evening until 1:00 or 2:00 a.m. In addition, the two lovers had been seen in public arm in arm and his wife kept a diary that contained incriminating entries as to her adulterous actions. Given the totality of this evidence, it was enough to prove the wife’s adultery. As such, the husband was not required to pay alimony. See, e.g., Leonard v. Leonard, 259 So.2d 529 (Fla.Dist.Ct.App.1972).

Other potential grounds for a divorce are habitual drunkenness and drug addiction, impotence, bigamy and insanity. Though impotence and bigamy are traditionally grounds for annulment when present at the time of marriage, some states allow impotence and bigamy as grounds for divorce.

In deciding which method to use if an annulment may also be applicable, divorce may the preferred option to prevent financial hardship for one spouse. Specifically, if an annulment is granted, the marriage terminates retroactively and alimony may not usually be awarded. By contrast, if a divorce is granted, the marriage is terminated as of the date of the decree and alimony may be awarded.

In addition to specific grounds for divorce, many statutes contain more general grounds such as physical cruelty, mental cruelty or gross neglect.

Example: Angela seeks a separation from her husband Matthew on the ground of cruelty because he frequently threatens her and forces her to leave their home. After a one-year separation, Angela returns because Matthew promised he had changed his ways. After only a month Matthew resumes his abusive treatment of Angela, including physical threats. This time, when Angela leaves she also files for divorce. The court held that Matthew’s conduct constituted mental cruelty sufficient to render continued cohabitation insupportable. See, e.g., Hughes v. Hughes, 326 So.2d 877 (La.Ct.App. 1976).

Defenses to Divorce

When there is fault-based divorce, there are also accompanying defenses. In a no-fault system, these defenses are not applicable (or necessary). See, e.g., Flora v. Flora, 337 N.E.2d 846 (Ind. 1975). The defenses are:

  • Collusion;
  • Condonation;
  • Connivance; and
  • Recrimination.

Collusion is an agreement between the parties to a marriage that one of them will appear to commit an act that will constitute grounds for divorce in order to obtain a divorce. The act will not actually be committed. Thus, there is an element of fraud required.

Example: Charles and Emily are married. While Charles is in the army, Emily lives with Asa and has a child by him. Emily tells Charles about this situation and Charles agrees to a divorce so Emily can marry Asa. Charles files for divorce on the grounds of adultery and abandonment. Emily does not object to the divorce. The lower court dismisses the suit because of collusion. An appellate court reversed the lower court’s ruling and granted the divorce because it found no collusion here. Specifically, collusion involves an agreement to defraud or obtain a divorce on a ground they are not entitled to. Here, Emily just agreed to the divorce. She did not prearrange a fraudulent scenario to become eligible for a divorce. See, e.g., Conyers v. Conyers, 224 S.W.2d 688 (Ky. 1949).

Condonation is the voluntary resumption of the marital relationship by the spouses, after one commits an act that constitutes grounds for divorce, with knowledge of the act by the other party. Forgiveness and restoration of the marital relationship are the two very important aspects of condonation with varying degrees of applicability, depending on the jurisdiction.

Example: Lisa and Everett are married and Lisa commits adultery. Everett learns of the incident, but forgives Lisa and cohabits with her when she promises to be faithful. Subsequently, Lisa commits adultery again while cohabiting with Everett; he is unaware of Lisa’s adultery this time. Everett now sues for divorce for adultery and Lisa raises the defense of condonation. Despite this objection, the court granted the divorce because Everett had no knowledge of these new incidences of adultery. As such, he could not condone her actions. Condonation of specific past acts of adultery does not affect subsequent acts. See, e.g., McKee v. McKee, 145 S.E.2d 163 (Va. 1965).

Connivance is the consent of one of the parties in a marriage, to an act by the other that constitutes grounds for a divorce, and the commission of the act. This is usually found only in actions based on adultery.

Example: Frank believes that his wife Linda has cheated on him; therefore, he wants to divorce her. To help bolster his case, Frank hires a private detective agency that sends one of their decoy agents to entertain Linda and perhaps coax her into some adulterous conduct. The plan worked too well because the agent has sexual relations with Linda. Frank brings suit for divorce and Linda raises the defense of connivance. The court held Linda’s defense was valid. Accordingly, Frank was not entitled to a divorce since connivance may be implied by his acts, which contributed to Linda’s unfaithfulness. See, e.g., Rademacher v. Rademacher, 70 A. 687 (N.J.Eq. 1908).

Essentially, for connivance to apply, one party must have consented to the misconduct. The court thus assumes that the party would not be injured by the misconduct. For the defense of connivance to be effective, the plaintiff must have actively created an opportunity for the other to commit the marital offense of which he or she now complains. If the plaintiff has merely acquiesced rather than helped create the opportunity, then the defense of connivance will not be successful.

Example: Cameron sues for divorce on the ground of his wife Winnie’s habitual drunkenness. Winnie raises the defense of connivance. Winnie states that Cameron, knowing of her problem, brought liquor home and took her to social affairs where liquor was served and even drank with her. Despite Winnie’s defense, the court grants the divorce. An essential element of connivance is the corrupt intent on the part of the spouse bringing the divorce action that the other spouse commits the act complained of. Here, Cameron did not intend that Winnie become an alcoholic. In addition, he was not obligated to forego his own pleasure of drinking at the risk of being charged with corrupt intent to make Winnie an alcoholic. See, e.g., Muir v. Muir, 86 A.2d 857 (Del. 1952).

Recrimination bars a divorce to either spouse where both spouses have committed acts which are grounds for divorce.

Example: Valerie brings suit for divorce against Ernest, who files a cross-complaint for divorce. Ernest had physically injured Valerie on several occasions, was often intoxicated, and boasted of having sexual relations with other women. Ernest was also able to show that Valerie had committed adultery. The court denied a divorce to either party on the ground of recrimination, reasoning that Valerie’s action should bar her from obtaining a divorce even though Ernest’s actions were also valid grounds for divorce. On appeal, the court remanded the case for further consideration. Specifically, the lower court was instructed to further develop the circumstances, including comparative fault of the parties, the prospects for reconciliation and the effect of the marital strife upon the parties. See, e.g., DeBurgh v. DeBurgh, 250 P.2d 598 (Cal. 1952).

As shown by the various examples in this section, trying to pin fault on the other party in order to obtain a divorce can be convoluted and time consuming. To streamline the process, various jurisdictions now recognize no-fault divorce.

No-Fault Divorce

In response to criticism about the emphasis on grounds to obtain a divorce, often under spurious or specious claims, many states have moved to a no-fault system. Some statutes (like the New York statute mentioned in the last section) require that the parties live “separate and apart in different habitations” or that there be “voluntary separation from bed and board.”

Example: Nick leaves Rachel to live with his mother. Nick goes to Rachel’s house daily, performs chores and attends social events with Rachel; however, they do not resume their sexual relationship. In this instance, the court held that the “separate and apart” standard was not met because of these continued associations. Accordingly, the suit for divorce was dismissed. See, e.g., Ellam v. Ellam, 333 A.2d 577 (N.J. 1975).

Initially, the no-fault divorce statute in California required “irreconcilable differences, which have caused the irremediable breakdown of the marriage.” Currently, California authorizes divorce on only two grounds:

(2) Incurable insanity.

See Cal. Fam. Code § 2310 (2004). In addition, irreconcilable difference are those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved. See Cal. Fam. Code § 2311 (2004).

The standard in Delaware is that the marriage must be “irretrievably broken” and reconciliation is improbable. See 13 Del. C. § 1505 (2004). This may be shown by voluntary separation or a separation caused by mental illness, misconduct of one spouse or incompatibility. See 13 Del. C. § 1505(b) (2004).

Uniform Marriage & Divorce Act

In 1970, after extensive study and discussion, the Uniform Marriage and Divorce Act (“UMDA”) was approved by the National Conference of Commissioners on Uniform Laws. It adopted as the sole ground for divorce “that the marriage is irretrievably broken.” Fault has largely been eliminated from the grounds for divorce, as have those defenses related to fault: collusion, connivance, condonation and recrimination.

The Act has been adopted, in whole or in part by only seven states: Arizona, Illinois, Kentucky, Minnesota, Missouri, Montana and Washington—each adopted prior to 1978. Subsequently, Colorado adopted the Act. Like our previous discussions on uniform laws, they can serve as a means for uniformity across state lines, especially given the mobility of modern day families.

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