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Divorce Grounds Answers From The Expert
The divorce grounds, or the reason that you are filing for a divorce, are part of your divorce petition. Most states
recognize a no fault divorce in which there are irreconcilable differences, and no one is to blame for the breakup of the marriage.
There are also fault based grounds, which vary from
state to state, but generally include adultery, abuse, desertion, alcoholism or
drug addition, incarceration, and insanity. You can look up the statutes for your state to find out the specific
allowable grounds for divorce.
You can also read the following questions and answers from the legal expert concerning the various grounds for divorce.
Will it look bad if I change the grounds for divorce?
Cat's Question: My lawyer and I filed for divorce on
the grounds of cruel and inhuman treatment, then filed a verified
complaint with the court listing the reasons. My husband and his
lawyer responded with a verified answer that denied all of my
allegations and "strongly suggested" that I change my
grounds to abandonment. Does it look bad for me to change my
grounds, either in the court or in the eyes of the opposing
side? My lawyer seems to think it's normal to change grounds,
but I am not convinced.
Brette's Answer: Changing
grounds is not a problem for you in the case at all. All the court
cares about is whether there is a valid grounds. It sounds like your
spouse doesn't want to admit to the grounds you used, probably
because it makes him look bad. Abandonment is about facts - date of
leaving and so on, and is not about a person's behavior, which makes
it easier for some people to admit to. Using a grounds your spouse
will admit to will make things much easier for you. If you have to
have a grounds trial, it will get expensive and emotionally painful
for everyone. » Return to top
Can you change the grounds for divorce after the divorce is over?
Sue's Question: Is it possible to change the grounds of divorce in a "Judgment Of Divorce"? Mine shows "Incompatibility" but I need it to show "Adultery". The divorce was several years ago and now I've met a man who shows a promising future, but he will only accept a divorce by adultery. I am not trying to gain anything from my ex by this. Only a future husband.
Brette's Answer: No. If the divorce was filed for one reason, that is the reason it would be granted for. You cannot change it. If adultery did in fact happen, why don't you just explain that to him? If he doesn't believe you, personally I would question his stance on this. » Return to top
What can I do if I disagree with the grounds for divorce?
Kathy's Question: My husband and I have been separated for 7
years. He finally filed for a divorce, but he is making me look like the
bad guy, stating that I was seeing other men and that I abused him. This
is a total lie, but what can I do?
Brette's Answer: It sounds like you don't have a problem with
the divorce itself, and only disagree with the way the grounds for divorce has
been described. If you're willing to go forward with the divorce, you could tell
your husband that you will agree, but he has to modify the description of the
grounds so that it is not so insulting. This is easy to do and should get both
of you a solution that works. » Return to top
Can a separation be used as grounds for divorce?
Toni's Question: We have been separated for 5 years. Are there
any laws about the duration of separation that entitles one to an easier divorce?
Brette's Answer: You need to consult an attorney in your state
since the laws about this vary. In some states, a legal separation is a grounds
for divorce. » Return to top
Can he claim desertion if he knew that I was moving?
Diana's Question: I have moved out of our home and moved out of state. He
said he was going to file for desertion. Can he do this? He was there the whole
time I was packing. He was aware of me leaving, because he and I could no longer get along.
Brette's Answer: To get a complete answer you need to look up divorce
laws in the state you were married in, or see an attorney. In many
states abandonment is a legal reason for divorce, but often it is
required that the spouse who left tried to keep his or her
whereabouts a secret in order for abandonment to apply. While I
understand that having your spouse accuse you of abandonment really
feels like a terrible insult, what you need to keep in mind is that
most of the time the words used to give a legal reason for the
divorce are not important. It sounds to me like you don't want to
stay married anyhow, so getting through the divorce is the thing to
focus on. There are probably other legal reasons for divorce that
you and your spouse could use, so it might be worthwhile discussing
those as an option if this really bothers you. Find out what the
options are in your state and see if there is one you can both agree
on. In almost all divorce cases the spouses eventually agree about
the legal reason for divorce and stipulate to it in court, so there
is no trial about who did what to whom. » Return to top
Can I claim abandonment if I woke up and he was gone?
April's Question: My husband has left to go to Florida with out telling me. I found when I woke up and one of the kids said daddy went to Florida. I then noticed that his travel bag was missing. He left me and the kids with no money. If I file for divorce, can I claim abandonment?
Brette's Answer: Abandonment usually requires that the spouse be gone for a certain period of time. Check your state laws for information.
Should I claim abandonment as grounds for divorce?
Elaine's Question:
My husband goes to one of his friends or family's homes each
weekend. For four years, he has refused to sleep in the same
bed as me and sleeps on the sofa. I want to know if this
behavior is cruel or considered abandonment. He sparingly
provides for me and our three sons.
Brette's
Answer: You don't need to prove abandonment and can use
other grounds for divorce which are much easier to use. Talk to an
attorney. If you move ahead, you will be entitled to ask for spousal
support and child support during the case. » Return to top
Is it considered
abandonment if the person comes back?
Tracey's Question: If
someone stays at a friends house a couple nights a week, could that
be considered abandonment? The fights get so bad, communication is
lost, and they leave the situation. They return home after the
spouse leaves for work.
Brette's Answer: If you come
back, it is not abandonment.
Is emotional abuse grounds for divorce?
Rachel's Question: My husband's actions are making
me so stressed! He does things like saying he's going to quit his job, he
teases our 4 year old, he needs to be on an antidepressant but won't do it. He
keeps spending money we don't have and we're in a world of financial hurt. I do
not trust him with our kids (2 girls ages 4 and 6 months). Do I have any legal
grounds to go on as far as emotional abuse?
Brette's Answer: In most states you can either get
a divorce for no reason (no fault) or you can get a divorce based on cruel and
inhuman treatment. Talk to an attorney to understand your state laws.
Will my husband's abuse affect our divorce?
Angie's Question: If I have an order of protection
as a result of substance abuse and cruel treatment, is that grounds to file for
divorce without waiting the 1 year separation period?
Brette's Answer: The fact
that your husband has been abusive to you is very important and is
certainly grounds for divorce. I suggest you talk to an attorney about your situation and explore
what your rights are under your state laws. The grounds for
divorce vary by state, but the abuse by itself certainly is
enough. » Return to top
Is imprisonment grounds for divorce?
LaTrina's Question: How do I go about obtaining a
divorce from an inmate? My husband has been incarcerated for five years and has
received a life sentence without parole. I want to get a divorce, but he is
adamant about not signing the divorce papers. I am doing this pro-se because of my limited funds.
Brette's Answer: Imprisonment is a grounds for
divorce in many states. Your spouse does not have to consent to the divorce and
all you will need to do is prove the imprisonment. He does have to be served
though so you need to have papers sent to him according to your state
requirements. Most states have a pro se divorce packet you can get either online
or at the courthouse. Get that and follow the instructions in it. » Return to top
Can I get a divorce based on environmental cruelty?
Lottie's Question: I am four months pregnant and I
have a three year old. My husband wants us to live in this house that is mice
infested and moldy. Can I get a divorce for Environmental Cruelty? He does not
want to help me clean it up, and likes living in filth. What Can I do?
Brette's Answer: You should talk with an attorney
who can explain what your choices are for the grounds for the divorce. If you do
not live in a no fault state, there is usually a general provision for cruel and
inhuman treatment that covers just about every situation.
He moved out. Is it against the law to start another relationship?
Karla's Question: If my husband has
moved out and we are planning on divorcing, is it against the law to start another relationship?
Brette's Answer: If you have sexual
intercourse with another person while married, you commit adultery
which can be used as grounds for the divorce. Practically speaking
though, many people don't worry about this, especially if the
divorce is already underway or agreed upon. It's important to note
though that many mental health experts advise that it's not wise to
jump from one relationship immediately into another, although
everyone is different. » Return to top
Should I claim adultery as grounds for divorce?
Juanita's Question: I've been married for 36 years and know
without a doubt my husband is in an adulterous relationship. He's agreed to get
a divorce. What is needed by the courts to prove adultery? Does it matter who leaves the home first until
divorce is granted?
Brette's Answer: Adultery is grounds for
divorce, however to prove it, you generally need evidence or testimony that does not come from one of the spouses - so you need a
PI or another witness. Most couples avoid using this as grounds for divorce when possible. It sounds like
you and your husband may be in agreement about getting a divorce, so I would
recommend you see a mediator and try to come to a resolution on your own. Most
states have an option in which you agree the marriage is over or at least that
you say you have differences that cannot be resolved. In some states it does
matter who leaves the home, in terms of custody, possession of the home and
possibly grounds for desertion. Before you do anything, you should talk to an
attorney. » Return to top
Should I claim adultery or unreasonable behavior as grounds?
Sue's Question: I have been married for 18 years, but we have not had sexual relationship for about 6 years. He always kept saying that he would get help. Now I have found out that he is gay and has been for quite some time. He admits he has been hiding behind me to protect his sexuality. Now he has moved in with another woman and is going to do the same thing to her. I am devastated. Do I choose adultery or unreasonable behavior?
Brette's Answer: Adultery is always difficult to prove. A quasi no-fault option like unreasonable behavior is always much easier from a proof standpoint, and often from an emotional point as well. Good luck.
Is getting an STD after marriage proof of adultery?
Mary's Question: I was clean of any STD's before I got married. Then shortly after I got married, I found out I got an STD. Is that enough information to go for adultery in a divorce proceeding?
Brette's Answer: No it is most likely not. You need some kind of separate witness who can directly testify about the adultery. There are lots of other reasons you can use to seek a divorce that are easier to prove.
Will proof of adultery affect my divorce?
Jerri's
Question: If there is proof of an extra-marital affair (letters,
e-mails, an illegitimate child), how will that influence child custody, alimony,
and child support.
Brette's Answer: Adultery can be
used for the grounds for divorce and in some states adultery does
influence property settlements and alimony. In terms of custody, custody is
determined by the best interests of the child. Affairs usually
aren't considered, but they can sometimes have somewhat of an
impact. » Return to top
Can I sue the woman my husband had an affair with?
Lynn's
Question: Can I sue the woman who my husband had an affair
with that led to our divorce?
Brette's Answer: No you can't, at least not as it relates to your divorce. Update: In some states (Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota, and Utah) you can sue the third party for alienation of affection. You need to realize though that this is an expensive endeavor that requires a lot of time. To prove your case you will need to present evidence that the defendant’s malicious conduct contributed to or caused the loss of affection in your marriage, and this conduct occurred while the spouses were still living together as man and wife. It would be wise to consult with a lawyer about whether your state recognizes alienation of affection, whether it would be worthwhile to pursue, and then carefully weigh your options before you proceed. - T.
Could adultery still be an issue if our divorce was overturned?
Angie's Question: After 1 year, I sued to have my divorce overturned and won (I am now re-filing). During the past year I have been in a committed relationship. My attorney is now saying that since my divorce was overturned, I am technically married again. He said I should break off all contact with my new relationship or I could be counter-sued for adultery. My ex husband is also in a new relationship. I don't understand how after a year later I can be expected to do an about-face in terms of my current relationship. It seems we could re-file and stipulate to the fact that my ex husband and I both are in new relationships. Any advice?
Brette's Answer: Your attorney is giving you all the facts - it's up to you to decide how to live your life. Adultery is not easy to prove in general and if you're both in relationships he doesn't have much of a leg to stand on. Your attorney is just warning you about what could happen - if he didn't and your ex made an issue of it, you would be upset that he never told you. Listen to his advice, then make your own decisions. » Return to top
Is the absence of sex grounds for divorce?
Marci's Question: My husband and I have not had sex
in over 4 months. I have tried to get a divorce, but he will not sign papers and
is not being unreasonable. He also has been arrested and is on probation for
battery. I heard that if you do not have sex for at least 6 months then it is
considered to be not a marriage. Is this true and what should I do?
Brette's Answer: You need to speak to an attorney in your
state to discuss the specific legal grounds for divorce that are permitted in
your state. You don't need your husband's permission to file for, or get a
divorce. » Return to top
This column provides general information about
the various aspects of divorce. It is not intended to take
the place of legal counsel and should not be considered personal legal advice.
For specific recommendations concerning your
situation, please retain experienced legal counsel. WomansDivorce.com and Brette Sember disclaim
any liability from any claim arising from any information contained
in this column. This column is not a substitute for legal advice.
