The key defenses against an at-fault divorce petition are:
Before understanding these defenses, readers should know the following about an at-fault divorce case:
- Usually, a spouse files for an at-fault divorce because he/she desires justice, a larger share in the marital property, higher alimony, or favorable child custody terms. So, defense is important in an at-fault divorce because it can help an innocent spouse from sharing a higher percentage of the marital pie.
- It does not make any sense for the defending spouse to object to the other spouse’s petition for the divorce itself because the objection can be treated as an “irreconcilable difference” by the courts. An “irreconcilable difference” can be considered an adequate ground for granting the divorce. The courts believe that it is against public policy to force anyone to remain married when he/she wishes to dissolve the marriage – thus, an objection against the divorce petition itself makes no sense.
- On the other hand, if the defending spouse wants to convince the court that he/she has not committed any marital wrongdoing, then it is going to cost him/her a lot of time, money, and mental energy. In reality, most spouses do not defend at-fault allegations because defending such allegations requires extensive evidence, including witnesses, phone recordings, medical records, financial records, and more. Then, you also need an experienced divorce attorney’s advice, and such attorneys don’t come cheap.
So, instead of defending allegations, most spouses admit to marital wrongdoing but defend their marital misdemeanors by presenting the courts with one or more of the following defenses:
The connivance defense is usually deployed when the petitioning spouse alleges infidelity/adultery.
The defending spouse can allege that the petitioning spouse, by overt or covert means, baited or created conditions for him/her to commit marital wrongdoing – mostly adultery. Court judgments say that a spouse whose conduct was such that it facilitated wrongdoing like adultery may not have the right to complain about the other spouse being unfaithful. The courts regard the act of facilitation as “corrupt consent.” Connivance includes feigning ignorance, winking at, pretending not to know, or covertly approving the act by giving it passive consent.
Condonation or forgiveness is also usually used as a defense against allegations of adultery.
The defendant spouse may claim that the petitioning spouse was aware of his/her marital wrongdoing but chose to forgive him and allowed the marriage to continue as usual.
Provocation occurs when one spouse provokes the other to commit marital wrongdoing. The at-fault spouse can use provocation as a defense only if he/she is alleged of committing marital wrongdoing that was triggered by some kind of provocation by the other spouse.
For example, a spouse who is being physically or emotionally abused by the other spouse leaves the house. The abusing spouse alleges abandonment and files for an at-fault divorce. Then, the spouse who left the home can defend his/her actions by proving that he/she was sufficiently provoked to leave the house.
In at-fault divorce cases, recrimination is a counter-charge that can be used as a defense. Typically, the defending spouse alleges that the petitioning spouse too is guilty of marital wrongdoing. For example, the petitioning spouse can allege that the defendant spouse is guilty of adultery while the defending spouse can allege that he/she committed adultery because the petitioning spouse was abusive, was refusing physical intimacy, or was frigid/impotent.
If the misdemeanors/wrongdoings of both spouses provide a sufficient ground for an at-fault divorce, then neither spouse may be entitled to relief. Experienced family law attorneys are likely to advise their clients against filing for recrimination as a defense because proving or disproving charges and counter-charges can take time, money, and emotions – without any guarantee of a positive outcome.
Spouses who do not wish to wait for a divorce may collude with each other and hatch a plan in which one spouse alleges the other of marital misconduct/wrongdoing to obtain a divorce decree. The other spouse does not defend the initial petition but he/she may have a change of heart before the divorce decree is granted, and spill the beans by using collusion as a defense.
Courts consider collusion as an undesirable action because it is an insult to the court’s dignity and is akin to perjury.
Both the petitioner and defendant spouses need to prove their allegations or counter-allegations by presenting relevant and solid evidence. To know what constitutes substantial and relevant evidence, and how to dig it out, please check with your family law attorney.