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Grounds for Divorce

The grounds for divorce that are available to you will depend on the laws of your state. Most states have fault as well as no-fault grounds for divorce. In a traditional (fault) divorce the person seeking the divorce must show that his or her spouse did something wrong. Under the more modern concept of “no-fault” divorce, the party does not need to prove misconduct in order to get a divorce.

Traditional grounds for fault-based divorce include:

  • Adultery — Your spouse cheated on you.
  • Desertion — Your spouse left without providing for you and/or the kids, and without letting you know how to contact him or her. Usually the missing spouse must be gone a specific amount of time in order to legally label the absence “desertion.”
  • Confinement — Your spouse has been or will be in prison or in a hospital for mental-health treatment for a certain period of time.
  • Inability to engage in intercourse — In order to prevail on this ground for a divorce you must usually show that the person was unable to have sex prior to the marriage and that he or she did not disclose it.
  • Extreme cruelty — This can be a single act of mental or physical cruelty, or ongoing acts of cruelty.

The exact definition of what would constitute “adultery,” or any of the other grounds for divorce, will depend on the laws in your state and what the courts in your state have decided in similar cases. These particular grounds for divorce may not be available in your state. Some states do not even require or allow fault-based divorces. Other states will allow divorces on different grounds.

Why Would I Choose a Fault-Based Divorce?

If you have a choice between a divorce based on one of the above grounds (and possibly other grounds) versus a no-fault divorce, there are a few reasons why you might choose a fault-based divorce. In some cases, the way that the marital property is divided will be affected by the grounds for divorce. It is possible that in an equitable-property state (where the courts divide the property according to what is fair or equal) the court would favor the party that is innocent rather than the party who is at fault.

The reason for the divorce could also influence decisions about custody. If the ground for the divorce was extreme cruelty, this could influence a judge when he or she is trying to determine what is in the best interest of the child.

One of the major reasons why a person would choose a fault divorce is that it can sometimes be concluded more quickly than a no-fault divorce. That may appear unusual since a no-fault divorce cannot effectively be contested. After all, you are not accusing the other person of a specific bad act. However, a particular state may require a couple to be physically separated before they are given a no-fault divorce. The length of the time period that couples are expected to live apart varies from state to state.

Disadvantages of Fault-Based Divorces

Fault-based divorce has some significant disadvantages. If you are going to make an accusation like adultery or extreme cruelty, you have to be prepared to prove it with reliable evidence in court. The person against whom the accusation is made will have many reasons to fight the accusation, including avoiding harm to his or her reputation and interests (impact on custody, alimony and property distribution).

A divorce based on one of these grounds could take longer to resolve in court because defenses may be available to the accused spouse. The person who files will have the burden of proving his or her accusation, but the person accused of being at fault can present opposing evidence that he or she is not at fault, including arguing that the other person participated in the misconduct, encouraged it or condoned it.

Generally, courts do not want to force people to stay together if one person clearly wants a divorce. Each party, however, must still get a chance to make his or her case.


The modern trend is for states to move towards no-fault divorces and states allowing only no-fault divorces are in the minority. Most states have a no-fault option in addition to the traditional grounds for divorce. Abundant judicial resources are required to decide who is to blame when a marriage falls apart. In many cases, a long, contentious battle in court is a losing matter for everyone involved – the couple, the kids and the court.

Copyright © 2011 FindLaw, a Thomson Reuters business

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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