Grounds and

Defenses

Fault v. No-fault

Divorce can be granted only on proof of:

Statutory grounds
Satisfaction of certain statutory requirements

Fault = some form of marital misconduct,

which makes it impossible for the parties to
continue as H&W
No-fault = based on status of the parties OR
divorce on demand

Hypo

You are a DomRel attorney. She comes to you

and says, I want a divorce. He got a nose
ring and I hate it. Can she get a divorce in
Ohio? Whats the first thing you need to do?

ORC 3105.01

The court of common pleas may grant a divorce

for the following reasons:

Bigamy
Willful absence from the home (abandonment)
Adultery
Cruelty
Fraudulent contract to marry
Gross neglect of duties
Habitual drunkenness (for period of 1 year)
Conviction/imprisonment for a felony

ORC 3105.01

Ohio also has two, extremely limited no-fault

grounds that are based on status rather than
misconduct
Living separate and apart without cohabitation
Incompatibility

Procedural
requirements

One or both of the parties must have resided in the

state for a specified period of time prior to filing the
action (OH = 6 mos; ARK = 60 days)
Statute may also require one or both of the parties to
remain in the state for a longer time before the final
decree will be entered.
Residency generally must be corroborated by
separate witnesses
Conduct constituting the alleged ground must occur
within the state OR, if outside the state, must
constitute a legal cause of action within the state.

Procedural
requirements,
cont.

Cause of action must occur within specified time of

filing (e.g. cant seek a divorce for cruelty that
occurred 15 years ago)

most statutes set 5 year limitation

Grounds must be corroborated in contested actions

Done by testimony of witnesses, based on their
personal knowledge of specific acts (NOT conjecture,
supposition, or hearsay)
Not required in uncontested cases
Corroboration can be waived, but must still allege
and offer evidence of marital misconduct/status

Procedural
Requirements,
cont.

Residence within state and separation for

statutory time period must always be
corroborated.
BUT courts will generally allow corroboration
by affidavit rather than live testimony.

Divorce Reform

Basic concept behind fault-based divorce is that the

termination of the marriage is punishment for the
party guilty of marital misconduct, and a privilege for
the innocent party
This school of thought dominated Western law until the
reforms in the early 1970s
Uniform Marriage and Divorce Act creates no-fault
All states now provide for some kind of no-fault divorce,
but many retain fault-based divorce as well (e.g. OH)
Only 15 states have pure no-fault, where all fault has
been eliminated, and no statutory requirements must be
met (e.g. OH and Cali dissolution)

Divorce Reform

Most divorces today are consensual

One party agrees to file, other party agrees not to
contest
BUT if no grounds exists, or statutory factors are not
met, and parties do NOT agree, no divorce

If uncontested, parties will, negotiate custody,

property division, etc., and divorce can be granted
without a formal trial
If contested, or there are any disagreements over
custody, property division, or support, then those
issues will be decided at trial

Adultery

Adultery: voluntary sexual intercourse of a

married person with a person other than the
spouse
Not limited to heterosexual contact
Most often proved by circumstantial evidence

Proof of inclination
Proof of opportunity
Lord Mansfields Rule

Abandonment

Abandonment/Desertion: the voluntary separation by one

spouse from the other, with the intent not to resume martial
cohabitation, without the consent of the other spouse, and
without justification
OH = willful

Most states require that the spouse has been

deserted/abandoned for a specified period of time
Most common = 1 year (e.g. OH), but could be as much as 5
years
Period of absence must be uninterrupted
Reconciliation will interrupt time period, and period begins again
if spouse deserts again

Abandonment, cont.

If spouse leaves under circs that do NOT

amount to desertion, time period starts to run
when the circs exist.
Good faith offer of reconciliation made by
deserter will toll the running of the time period.
If offer is unjustifiably refused, such refusal may
constitute desertion by the refusing spouse
Any offer not made in good faith is disregarded
by the court

Abandonment, cont.

If the separation has been consented to, it is

NOT desertion
But note: deserter and spouse can enter into
agreement re: support and custody, and this
will not amount to consent to the separation.

Is leaving the marital home required? States

do not agree

Abandonment, cont.

Lack of justification: if the deserting spouse is

justified in leaving (due to other spouses conduct),
departure will not be characterized as desertion.
Could constitute constructive desertion in states
that recognize that cause of action
Constructive desertion = the conduct of one spouse
is so intolerable that the other is forced to leave the
home.
Some court require conduct of offending spouse to
constitute independent ground for divorce, others not
so strict

Cruelty

Cruelty: severe conduct by the offending spouse, unprovoked

by the complainant, continuing for a period of time
A single act of cruelty is generally not sufficient for divorce
UNLESS it is outrageous, shocking, or very brutal
Specific kinds of cruelty recognized by the courts:

Violence or threat of violence

Sexual abuse /marital rape
Refusal to have relations may or may not be considered cruelty
Attacks on self-respect or reputation
Neglect
General martial unkindness

Other fault-based
grounds

Gross neglect of duty: includes elements of

both desertion and cruelty (OH, KAN)
Can also be established by proof of nonsupport
Conviction and/or incarceration for a felony or
infamous crime
Habitual drunkenness and/or drug addiction
Impotence/undisclosed infertility as of the
time of the contract to marry
insanity

Defenses

Relate only to fault-based grounds

Examine statute
Not all states recognize all defenses (e.g. OH)
Definitions may differ between states

Four traditional substantive defenses

Recrimination
Connivance
Condonation
collusion

Recrimination

Where both spouses have been guilty of

marital misconduct (conduct which would
constitute grounds for divorce), neither may
obtain the divorce
Essential element: Ps hands are unclean
In some states, the misconduct by the P must
be the mirror image of the grounds asserted
for the divorce (e.g. MT)
In others, any conduct that is itself a ground for
divorce will suffice (e.g. MS)

Complications:

If misconduct is forgiven, spouse becomes

innocent party again
Doctrine has been expressly limited or
abolished in 17 states (e.g. OH)
Common limitations:
Granting divorce to both spouses
Affirmative defense
Doctrine of comparative rectitude

Connivance

Petitioner has consented to, or aided and abetted in

the respondents marital misconduct
Essential element is corrupt consent to the
misconduct
Complaining party has not really been wronged
Consent can be direct or indirect

Knowing about it and doing nothing will not suffice

Need either overt helping or overt agreement

EX: open marriage; supplies drugs

Condonation

Petitioner has forgiven the misconduct

asserted as grounds for divorce
Essential element is forgiveness, with full
knowledge of the wrongdoing
Can be direct or indirect
Direct = asked for and granted
Indirect = acts raising an inference of
forgiveness

Condonation

Courts vary on what constitutes forgiveness

Most common: voluntary resumption of
marital relations
Single act can suffice
But in some jurisdictions, creates only a
rebuttable presumption of forgiveness

Condonation

Forgiveness is held to be conditional on

offending spouses future good behavior
(conjugal kindness)
Original cause of action will be revived
Cases unclear whether spouse must refrain from
repeating misconduct or engaging in any further
misconduct
NOT a defense in OH (3105.10(c))

Collusion

Parties have agreed to manufacture evidence

of grounds OR that one will assert non-existent
grounds and the other will not defend (either
by default or no contest)
Essential element is fraud on the court
Generally, not raised by parties, rather court
denies divorce sua sponte
Can also be raised in a collateral action to
contest a consequence of the divorce

Collusion

Beware clauses in prenuptial agreements that

state that parties will not defend divorce
action regardless of circumstances. This is a
clear statement of collusion.
If parties agree that one will file and the other
default, the defaulting party can generally
reopen the case (based on the collusion) in
order to defend the divorce

Problem: Ben and

Jennifer
Afflicted
Whats the first thing you need to know?
Any basis for Jennifers claim of cruelty?
Any defense?

Any basis for her claim of desertion?

Any defense?

Problem: Ben and

Jennifer
Afflicted
Can she prove adultery? What does she need
to show?
Can Ben claim desertion?
Any defense?

Can Ben claim any other ground for divorce?

If Jennifer is guilty of cruelty, but Ben is also
guilty of constructive desertion, what can a court
do?
What will an OH court do?

Status based/No-fault
divorce

First adopted in California

Allegedly to make divorces harder to get, not
easier

No marital misconduct is asserted, but parties

must satisfy statutory requirements
Living separate and apart for specified time
period
Incompatibility, irreconcilable differences,
marital breakdown

These are grounds for divorce, just not faultbased

Common-law defenses will not apply

Status based/No-fault
divorce

If proved, court will grant the divorce (even if

contested), but only upon a finding that the
marriage is irretrievably broken
Parties may still be able to litigate property,
support, custody issues
Many states now require conciliation
conferences or marriage counseling if one
spouse denies that the marriage is broken

Living Separate and

Apart

Must show that parties have lived apart for

specified time period, along with whatever
other qualifications are outlined in the statute
Most common: without cohabtation

Distinguish from desertion

No need to show lack of justification or consent

Time periods vary; anywhere between 6 mos

and 3 years.
OH = 1 year

4 types of statutes:

Living apart pursuant to a written or judicial

separation agreement
Living apart voluntarily or by mutual consent
Cant kick her out of the house and the sue 18
mos later on this basis

4 types of statutes:

Living apart for the specified time period,

whether voluntary or not
Gen means prison, but could include armed
forces, job change, etc.

Living apart, AND parties must show marriage

is irretrievably broken
May also be required to show reconciliation has
failed or would be futile

Living Apart?

Rules relating to desertion can be helpful, but

most jurisdictions specify without
cohabitation
Cohab: sharing familial and financial
responsibilities, plus consortium
Consortium = mutual respect, fidelity, affection,
society, cooperation, solace, comfort, aid of
each other, friendship, and conjugal relations
No one factor is dispositive

Living Apart?

Can parties live in the same house, but as

strangers?
Yes, in NJ or NY; NO in SC or IL

Live apart, but friends with benefits?

No in NC or AR (not truly separate and apart)
YES in OH (occasional sex will not always defeat
no cohabitation claim)

But it can: war story

Incompatibility

Refers to conflict or discord between the

parties temperaments and personalities,
which is so severe that the parties can no
longer live together in harmony
Does not matter how the disharmony came to
exists that would involve assessing fault
BUT where party seeking divorce has
committed marital fault, some courts will deny
no-fault and require parties allege fault-based
grounds

Incompatibility

Common law defenses technically dont apply,

but some courts have found continued marital
relations casts doubt on any alleged
incompatibility
Never rely on as only ground for divorce. If
one party denies, some courts (e.g. OH) will
not allow.
BUT argument can be made that disagreeing
over whether you are incompatible proves
incompatibility

Marital Breakdown

No conflict or discord, but marriage is dead,

with no reasonable hope that it can be revived
If uncontested, court may grant without
examination of the specifics of the marital
relationship.
Parties need only testify, without contradiction,
that their marriage is over

Test for marital breakdown is subjective, but

one factor courts will consistently examine is
the likelihood of reconciliation

Marital Breakdown

If contested, some statutes require the court

make an express finding of marital
breakdown
Koon, p. 276 and limited no-fault statutes
If contested, some jurisdictions will postpone
the action and require conciliation conferences
Marriage counseling v. divorce counseling.

Divorce on demand

Provides for divorce without fault AND without

any statutory requirements (IOW, divorce by
mutual consent)
Many states call this a dissolution rather than
divorce
CA, HA, CT, IL, FL, OR, NV, IN, CO, WA, MT, MN
OH: summary dispo, but court will find
breakdown

Divorce on demand

Gen available only for marriages with no minor

children, and spousal support is waived (unless
permitted by statute and agreed by parties)
Statue may also limit size of marital estate

Statutes generally require that parties settle

all property issues in negotiation. If anything
is left for court to resolve, no dissolution (e.g.
OH)