A fault divorce is the dissolution of a valid marriage, where one of the spouses is guilty of marital misconduct. A fault divorce is usually chosen by a spouse who wishes to be vindicated by proving the other's fault. In some states, the spouse who proves the other's fault may receive a greater share of the marital property or more alimony.
This type of divorce can be based in any of the following:
- cruelty, which includes the infliction of unnecessary emotional or physical pain and abusive treatment
- adultery means voluntary sexual activity between a married person with a person other than his or her spouse
- desertion for a specified length of time
- confinement in prison for a number of years
- alcohol or drug abuse
- physical inability to engage in sexual intercourse, if it was not disclosed before marriage
- infecting the other spouse with a sexually transmitted disease
There are also defenses which can be raised by the other spouse in a fault divorce proceedings.
- Recrimination - it is the defense wherein the accused spouse in an action for divorce makes a similar accusation against the complainant spouse.
- Condonation - which usually takes the form of implied or express forgiveness of a spouse's marital wrong and, therefore, weakens the accusers case.
- Connivance - which is the act of knowingly and wrongly overlooking or assenting without any placing any opposition to a spouse's marital misconduct, especially to adultery.
- Reconciliation - is where the spouses voluntarily resume marital relation by cohabiting as spouses prior to a divorce becoming final with mutual intention of remaining together and re-establishing a harmonious relationship.
- Provocation - is inciting the other spouse to do a certain act. An example of this is when a spouse claiming for abandonment, the other spouse may raise the defense that the claiming spouse provoked the abandonment.
It is equally important to consider all the circumstances when making these charges or planning a defense. Proof of marital fault is needed. It usually requires witnesses, involves a lot of time and expenses, and there is a high probability that the divorce will turn vicious.
It is important to note that the grounds and defenses for a fault divorce are defined by the different jurisdictions and that the legal interpretation may likewise vary from one place to another. Also, be aware that actual legal definitions may be very dissimilar to a layman's concept of the term.
Fault divorce is usually more expensive, because it may necessitate a trial. This means hiring the services of an attorney and correspondingly paying for investigations, interrogatories and requests for evidence. Oftentimes, expert witnesses are invited during the hearing. However, there are also instances when fault divorce cases are settled with good reason before trial commences.
If the scenario is of both spouses being at fault or both spouses have shown grounds for divorce exists, the court will grant a divorce to the party who is at least at fault under the doctrine of "comparative rectitude." This is a recent development in the field of law, because years ago, when both spouses were at fault, neither was entitled to a divorce.