California is a “no-fault” divorce state, which by far the most common divorce filing. For the no-fault divorce no specific reason is required to be given other than “irreconcilable differences.” However, other divorce actions can still based on fault. Even the states that recognize the “no-fault” divorce will consider fault when deciding other issues, i.e., property division and spousal support requests. Misconduct like spousal abuse or infidelity can often result in larger property awards and larger spousal support to the abused spouse.
The following are just some of the defenses that each divorcee should be aware of:
Connivance is a defense that is used almost exclusively for infidelity. This defense applies where the complaining spouse was aware of and consented to the infidelity. This defense works for couples who had an open or polygamous relationship, knew the acts that spouse was engaged in and consented to that wrongful act. This is an absolute defense.
Condonation this defense applies where one spouse knew about the infidelity of another. However, unlike connivance, the spouse did not consent to that infidelity, but upon discovering the infidelity forgave the unfaithful spouse and resumed a marital relationship with that spouse. Under these circumstances infidelity cannot be used as a reason for dissolution of marriage. This defense also could apply to other types of deception or fraud. Similarly to infidelity, if upon discovering the deception continues to live with that spouse as a married couple, the deception cannot be used as grounds for divorce.
Recrimination is another defense to a “fault” divorce where both spouses have equal fault or conduct that leads to divorce. If both spouses had not been faithful to each other, infidelity cannot be used to assign fault.
Provocation appears self explanatory but this defense is probably the most misunderstood. This defense applies where one spouse provokes the action of another. If one spouses abuses the other spouse, which causes the abused spouse to leave, the abandonment cannot then be used as a fault or a ground for divorce.
With these defenses in mind, fault-ground divorces can be far more expensive than the no fault divorces. And with the lack of witnesses the battle will most likely turn to “he said/she said.” That is why it is very important to weigh you option and to determine whether fault-grounds divorce is the right option. Having an experienced and knowledgeable attorney by your side is critical. Your attorney will help you in all aspect of the legal process including informing you of all your options so you can make informed choices.