Requirements for a Cause of Action & Divorce
By Angie Gambone
In order to obtain a divorce, you must state at least one cause of action in your paperwork. A cause of action for divorce is the legal reason why you believe a divorce is appropriate. This is also commonly referred to as the grounds for divorce. There are fault and no-fault causes of action for divorce. Each cause of action has its own requirements for what you must prove in order to get divorced. Because the cause of action that you choose can have an effect on the outcome of your divorce case, it is important to familiarize yourself with each one before filing your complaint.
No-Fault Causes of Action
No-fault grounds for divorce are common in all states. Under these causes of action, you do not have to prove that your spouse acted improperly or did anything wrong. Some states have only no-fault grounds for divorce because it streamlines the process. Common no-fault causes of action are irreconcilable differences, irretrievable breakdown of the marriage and incompatibility. In general, irreconcilable differences, incompatibility or irretrievable breakdown of the marriage is when you and your spouse have problems in your relationship that make it difficult for you to continue living together as husband and wife. You do not need to explain what those differences are; you only need to testify that they actually exist. In some states, separation is a requirement of spouses who seek no-fault grounds for divorce; this means you and your spouse must not live together as husband and wife for a certain period of time. This time period varies between states, but typically ranges from 12 months to two years. Additionally, some states allow separation, by itself, as a no-fault ground for divorce, so alleging a ground such as irreconcilable differences is not necessary.
Fault Causes of Action
Fault-based causes of action for divorce require you to prove to the court that your spouse acted improperly. Common fault grounds include adultery, cruelty and abandonment. For adultery, you must prove to the court that your spouse had an affair. Cruelty is when you claim your spouse has engaged in inhumane conduct that was so powerful that it affected you mentally or physically. Oftentimes, a woman will file for divorce on cruelty grounds if her husband engaged in frequent domestic violence throughout the marriage. Desertion, sometimes called abandonment, is when one spouse leaves the relationship without any intention of returning. Usually that spouse must have moved out for a period of time without the other spouse's consent.
Effects of Fault Divorces
If your spouse files for divorce using a fault-based cause of action, it may have an impact on custody, property division and spousal support. For example, if your spouse claims that you engaged in cruel behavior throughout the marriage, a court may limit your custody rights out of fear that your behavior may harm your children. If your spouse proves that you abandoned the relationship, this may affect your rights to personal property or real estate that you left behind. Finally, depending on the state, circumstances of the case and type and severity of misconduct involved, you may lose your right to receive alimony from your spouse.
Defenses to Fault Divorce
If your spouse files for divorce using a fault-based cause of action, you have the right to defend yourself. Some common defenses are condonation, connivance, provocation and recrimination. Condonation means that your spouse knew about the improper conduct, accepted it and continued the relationship. For example, if you had an affair and your wife found out about it then stayed with you for many more years, a court is not likely to grant her a divorce based on the grounds of adultery.
Connivance is another common defense to adultery which means your spouse consented to or participated in the conduct. This is common in "open relationships" where both partners agree to bring a third person into their relationship for physical or emotional interactions.
Provocation means that your spouse provoked, or caused, the conduct they are claiming in the divorce. For example, if your spouse files for divorce because you abandoned her, you can defend yourself by saying that she forced the abandonment to occur by engaging in patterns of violence that made it unsafe for you to stay with her.
Finally, the last common defense to a fault-based divorce is recrimination, which means that both spouses did the same thing to one another. For example, both spouses had affairs or both engaged in violence towards each other. In effect, the bad acts cancel each other out and the cause of action is therefore improper.
Angie Gambone is an attorney who has been writing for various websites since 2009. She covers a variety of topics, focusing on legal issues, family law and LGBT rights. Gambone holds a bachelor's degree in social work from Rutgers University and a law degree from Rutgers School of Law, where she graduated with honors in 2010.