Divorce Grounds

By WomansDivorce.com

The divorce grounds cited in a divorce petition establish the reason a person is filing for the divorce. All states now recognize no-fault grounds for divorce, often called irreconcilable difference, designating that the marriage is irretrievably broken down and neither spouse is at fault.

The various grounds for divorce

Many states also allow fault-grounds to be cited as the reason for divorce, meaning that some type of marital misconduct led to the breakdown of the marriage. Fault grounds differ from state to state, but commonly include adultery, domestic violence, abandonment, substance abuse or alcoholism, imprisonment, and mental disability or illness.

You can review the divorce statutes in your state to learn about the specific allowable grounds for divorce that may used when filing for a divorce. You can also read the following answers to our visitor's questions concerning the various grounds for divorce.

FAQs about Divorce Grounds

He doesn't have any grounds for divorce except that he's not happy.

Rhonda's Question: I am married and live in California. My husband wants a divorce and I don't. He does not have any grounds for divorce except that he is not happy. Can he file for a divorce based on that?

Brette's Answer: California is a no fault state, so your husband needs no grounds or reason.

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, and 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 are 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 ground for divorce that your husband will admit to will ultimately make things much easier on you. If your husband contest the grounds for divorce, the court will order a grounds trial, which can be emotionally painful and expensive for everyone involved.

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.

Can he claim irreconcilable differences and abandonment?

Michelle's Question: My husband filed for divorce and told me that he put Irreconcilable Differences and Abandonment as the reasons for the divorce. I left our house with our children only a month before he filed as a separation. I have looked up abandonment and it seems like it has to be at least a year of being gone in our state. What do I need to expect?

Brette's Answer: "Irreconcilable differences" is generally a catch-all in most states and can be used when other grounds do not work. If abandonment is not viable, this can still be used. Good luck.

Can he get a divorce based on lack of respect?

P's Question: My husband wants to divorce me because he thinks I do not respect him and his mother. Can he get a divorce on this ground?

Brette's Answer: If your state permits no-fault divorce, he doesn't need a reason. Check your state court web site for information about divorce in your state.

Can I contest the reason for the divorce?

Deborah: My husband filed for a divorce and I told him that I would not contest it and will cooperate 100%. He just sent me the Wavier of Service of Summons and Complaint for Divorce. In the Complaint for Divorce it states "guilty of gross neglect of duty and extreme cruelty toward him and that the parties are incompatible". Everything but the incompatible is a lie. I do not want it on our divorce papers the other things. Can I contest this and fight that it not be the reason for the divorce? We live in different states.

Brette's Answer: This is likely the language that is commonly used in your state in this situation. I can understand that you are uncomfortable with it though. You need to hire an attorney who can talk you through the state rules and discuss possible alternate language you might feel more comfortable. Good luck.

Can I get a divorce even if he opposes the grounds?

Claudia's Question: I have had 4 different orders of protection against my husband in the last four years, and he's pled guilty to Domestic Violence twice. I served him with summons with notice, but he doesn't like the "cruel and inhuman treatment" grounds for divorce. Can I get a divorce, even if he opposes the grounds?

Brette's Answer: You can always have a grounds trial is he does not agree. You should talk to your attorney about other grounds you could use, including no-fault which may save you money and time.

What if I disagree with the grounds for divorce?

Kathy Asks: We've been separated 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 about it?

Brette Replies: It sounds like you don't have a problem with the divorce itself, and only disagree with the way the grounds for divorce have 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.

Can a separation be used as grounds for divorce?

Toni Asks: We've been separated for 5 years. Are there any laws about the duration of separation that entitles one to an easier divorce?

Brette Replies: You need to consult an attorney in your state since the laws about this vary. In some states, a legal separation is grounds for divorce.

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 is 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.

Can I claim abandonment if I woke up and he was gone?

Grace's Question: My husband has left without telling me. He's told me not to call, he won't answer, but he left me and the kids with no money. Can I claim abandonment?

Brette's Answer: Abandonment has specific legal requirements that differ in each state, but 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 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.

Is it considered abandonment if the person comes back?

Tracey's Question: If someone stays at a friend's 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 considered 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, and 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.

Is an 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 divorced, 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 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.

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. He does not want to help me clean it up, and likes living in filth. Can I get a divorce for Environmental Cruelty?

Brette's Answer: You should talk with an attorney who can explain what your choices are for the grounds for the divorce. If you don't reside 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.

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. You should discuss this with an attorney before you do anything.

Can he use adultery as grounds for divorce after forgiving me?

Mary's Question: Can my husband use adultery as grounds for divorce after forgiving me?

Brette's Answer: Yes. Adultery is legal grounds for divorce and it doesn't matter if he said he has forgiven you. Good luck.

Should I claim adultery or unreasonable behavior as grounds?

Sue Asks: I've 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.

Can phone tracking evidence be used to prove adultery?

Peggy's Question: Can records from spyware placed on family phones (showing inappropriate two-way texts and inappropriate locations, such as hotels, as well as numerous two-way phone communications at inappropriate hours) be submitted as evidence of adultery? Some of the texts actually include information about a pregnancy and abortion. In regards to the phone calls, it is 1:07 a.m., and as usual the phone rang and he went outside to return the call.

Brette's Answer: You need to see a lawyer because admissibility varies by state. In general, adultery is difficult to prove and using other grounds for divorce is simpler and less expensive.

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 generally aren't taken into account, but they can sometimes have somewhat of an impact.

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.

Can he claim adultery as ground three years after our divorce?

Alice Asks: We've been divorced 3 years, with the settlement agreed and finances split. I am in a new relationship but not cohabiting and my ex now suspects this was going on during our marriage. He divorced me on the grounds of irreconcilable differences. Can he take me back to court to get the grounds changed so he can appeal the settlement?

Brette's Answer: It's very difficult to prove adultery, let alone three years after the fact.

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, and then make your own decisions.

Is the absence of sex grounds for divorce?

Marci's Question: We haven't had sex in over 4 months. I have tried to get a divorce, but he will not sign papers and is 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. What should I do if this is true?

Brette's Answer: You need to speak to a lawyer 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.

Additional Information:

  1. Divorce
  2. How to Get a Divorce
  3. Divorce Grounds