Today, on Redhead Mom, I’m sharing a partnered guest post about the grounds for at-fault divorce.
In the United States, divorce remains relatively common, although rates have gradually declined over the past few decades. According to the Centers for Disease Control and Prevention (CDC), there were more than 670,000 divorces and annulments reported nationwide, reflecting the ongoing prevalence of marital dissolution.
An at-fault divorce is when a party in the marriage files for divorce based on the fault of the other person. In at-fault divorces, the plaintiff has to show that the defendant’s conduct caused the marriage to fail.
At-fault divorce differs from the no-fault divorce, as no legal basis needs to be proven when filing for a no-fault divorce. In at-fault divorces, some of the issues include proving the grounds and their influence on the marriage.
Understanding the grounds for an at-fault divorce is important because they can influence not only whether a divorce is granted but also issues such as property division, alimony, and custody in some states.
Let’s explore the most common legal grounds for at-fault divorce, how they are proven in court, and what role they play in the overall divorce process.
Which States Still Make Fault Legally Relevant
The practical relevance of at-fault grounds varies enormously by state. In some states, fault affects only the availability of the fault-based ground as a path to dissolution and has no influence on financial outcomes. In others, marital misconduct is an explicit statutory factor in alimony determinations, property division, or both.
In Virginia, fault can be taken into account both when dividing the marital property and in providing alimony. If one spouse has committed adultery, the other will receive more than half of the marital property. Additionally, Virginia law states that an adulterous spouse shall be denied alimony under any circumstances.
North Carolina requires proof of adultery for post-separation support in some proceedings. New York, which added no-fault divorce in 2010, retained fault grounds and allows their assertion, though courts rarely weigh them heavily in equitable distribution.
Maryland, as noted in the earlier divorce laws post, eliminated all fault-based divorce grounds in 2023 but may still consider misconduct in alimony determinations.
The legal process of divorce begins with filing papers with the court, according to https://www.ciancilaw.com/. After that has been done, papers must then be delivered, or “served,” to the other party. They must be delivered by a neutral party over the age of 18, who will then sign a Proof of Service of Summons.
Adultery
Adultery is voluntary sexual intercourse between a married person and someone other than their spouse. It is a fault ground in most states that retain fault-based divorce. To prove adultery, you usually need evidence for both opportunity and inclination, so it means the accused spouse had the chance to commit it and also showed a pull or readiness to do it with the exact person being claimed.
Real, direct proof of the act itself is often pretty hard to come by, so courts tend to fall back on circumstantial evidence. In other words, these are the surrounding circumstances around the relationship and the openings for it.
Common defenses for adultery grounds include condonation, meaning the plaintiff forgave the adultery, typically by resuming cohabitation or sexual relations after learning the details. Another is recrimination, which now is a rarely used rule that blocks a plaintiff who also committed adultery from asserting it as a basis.
Connivance is a third defense, more like the idea that the plaintiff consented to or encouraged the affair; it is available in theory, but it rarely works in practice.
In states where adultery bars the adulterous spouse from receiving alimony, Virginia being the clearest example, the plaintiff’s decision to assert adultery grounds rather than no-fault grounds can have substantial financial consequences.
Cruelty and Constructive Desertion
Cruelty as a fault ground encompasses both physical abuse and mental cruelty, though the threshold for mental cruelty varies by state. Physical cruelty generally includes any course of physical abuse or a pattern of physical conduct that endangers the health or safety of the plaintiff.
Mental cruelty is more variable. States that recognize it typically require conduct that is more than the ordinary friction and unhappiness of a deteriorating marriage. Courts have recognized verbal abuse threats, systematic emotional manipulation, ongoing humiliation, and behavior aimed at undermining the plaintiff’s mental health.
Financial abuse is another factor that is getting more attention. Examples of these are withholding money, blocking employment, and racking up debt without consent. This is seen as marital cruelty in states where statutes or case law have been updated to track domestic abuse research.
Then there is constructive desertion, a related concept that’s available in some states. The idea is pretty simple yet serious: if one spouse’s conduct becomes so extreme that it effectively compels the other spouse to leave the marital residence, then the spouse whose actions pushed the other out is treated as the “deserting” party.
Abandonment and Desertion
To constitute abandonment, there must be evidence of the voluntary leaving of the marital premises by one spouse without the consent of the other spouse without any reason for the same.
Most states require a minimum continuous period of absence, commonly one to two years, before desertion constitutes a fault. The absence must be voluntary: a spouse who leaves because of the other’s cruelty, or who is excluded from the home, has not legally deserted.
Desertion by bed and board involves both parties residing within the same home, yet one denies the consortium of the other spouse, resulting in an end to their marriage even though both parties continue living together.
Establishing this involves evidence of withdrawal from all aspects of the marriage and intention to end the marriage forever, which can be much more difficult to prove than physical absence.
Imprisonment and Substance Abuse
Conviction and imprisonment of a spouse is a fault ground in most states that retain fault-based divorce, typically requiring a minimum sentence, one, two, or three years depending on the state, before it constitutes grounds.
The imprisonment ground is straightforward to prove: the conviction record and sentence documents establish both the fact and duration. In some states, life imprisonment is a separate statutory ground that eliminates any waiting period.
Habitual substance abuse or habitual drunkenness is a fault ground recognized in many states. The standard typically requires proof of a pattern of use, habitual rather than occasional, that substantially affects the family or the marriage.
A single instance of intoxication does not typically qualify. There should be a documented pattern of alcohol or drug dependency that has materially harmed the marriage, the family finances, or the plaintiff’s safety. Medical records, police reports, DUI records, and witness testimony are the primary evidence sources for this ground.
The Strategic Decision: Fault vs. No-Fault
A declaration of fault grounds increases the cost, conflict, and time it takes to get divorced. The grounds for divorce must be proved; the other party will contest them, and any investigation of the relevant activities, infidelity, and communications will raise the cost of the proceedings.
Where fault is of any consequence when awarding alimony and dividing property, this becomes a different scenario altogether. In a state like Virginia, where proving adultery is possible, one can prevent their partner from obtaining alimony forever, which in a case where there is a prolonged period of high earnings can be a huge advantage indeed.
The strategic value of asserting fault grounds depends entirely on the state’s treatment of misconduct and the specific financial stakes of the case.