EveryBody's Guide to the Law

on children. Children would, for example, be subjected to the trauma of being put on the
witness stand to testify that they saw Mommy in the company of several men while Daddy
was at work, or that Daddy started drinking the moment he got home and soon began slapping
Mommy all over the house. A no-fault divorce is difficult enough for children to go
through.
Does the development of no-fault divorces mean that fault is completely obsolete in states
where no-fault laws are in effect? Not at all. Fault can still play an important part in determining
the rights and obligations of the parties after the divorce. If, for example, the breakup
resulted from one spouse’s frequent belligerent conduct after drinking, that would be considered
in deciding which spouse should get custody of the children.
Defenses to Divorce
Suppose that your spouse sues you for divorce, but you don’t want one. Is there anything you
can legally do to “defend,” or prevent, the divorce? Defenses to divorce actions aren’t nearly as
important today as they were forty or more years ago, when divorces were harder to obtain.
Defenses are only relevant in divorces based on fault. No-fault divorces are essentially undefendable:
If one spouse wants a divorce, there isn’t much the other can do to stop it.
In a fault divorce proceeding, if an innocent spouse forgives the adulterous spouse, the
defense of “condonation” stops the divorce. Another defense is the assertion that the other
spouse provoked the conduct complained of. The provocation must be sufficient to justify the
wrongful act, however. For instance, a husband cannot justify an adulterous relationship
because his wife refused to have intercourse with him one night.
At one time, a frequent defense was recrimination: The spouse who filed for the divorce was
accused of being equally guilty of immoral or other wrongful conduct. If the wife asked for a
divorce on the ground that, say, her husband committed adultery, the husband could defend
the divorce on the basis that the wife herself had also committed adultery. Even if the husband
agreed to get a divorce, some courts would not give the couple a divorce, since they were
equally culpable. Holy wedlock became unholy deadlock. This made absolutely no sense, as
the two people obviously no longer wanted to be married, and the marriage was beyond salvage.
Today most courts simply would grant the divorce, end the couple’s suffering, and let
them get on with their separate lives.
When divorces were permitted only because of one spouse’s fault, a couple who could no
longer live together occasionally would agree that one of them should commit adultery so they
could get the divorce. Unfortunately, if the judge found out about it, he or she would deny the
divorce because of the parties’ collusion.
Marriage, Divorce, and the Family 11