Grounds for Divorce

If a Family Law essay shows up on the UBE, there is a strong chance that divorce might be among the issues tested.  Since states can vary as to the grounds required to obtain a divorce, it's important to know how to approach that issue on the UBE.

Most state statutes provide for divorce without any regard to fault. Since fault is removed from the equation, it's only required that there is a showing that the marriage has been irretrievably broken and/or the parties to the marriage have been living apart for a specified period of time.  If one spouse wants to defend against the divorce then that spouse will need to deny existence of at least one of these grounds.

But some states do require a showing of fault to obtain a divorce.  The usual grounds are adultery, wrongful desertion for a specified time, extreme physical or mental cruelty, voluntary drug addiction or habitual drunkenness, and a spouse's mental illness.

If analyzing a divorce requiring fault, the final step would be to determine whether any defenses exist. The following are defenses to a divorce requiring a degree of fault; in other words, these defenses would be raised after one spouse has proven that the fault required for the divorce has been satisfied.

Collusion: This is an agreement between the spouses to simulate grounds for divorce or to forego raising a valid defense.  If collusion is proven, this might prevent the granting of a divorce requiring fault.

Connivance:  If one spouse willingly consents to the other spouse's misconduct, the consenting spouse may be prevented from using that misconduct as a basis for proving that it amounts to the fault required for a divorce.  Should be noted that this is a very limited defense that has been abolished in most states.

Condonation: This is the forgiveness of marital offenses with full knowledge of their commission.  An indication of forgiveness would be resuming the marital relations after gaining the knowledge of the offenses.

Recrimination: This defense arises when a spouse seeking a divorce is also guilty of misconduct that the other spouse could use to obtain a divorce. This defense is no longer recognized.

For the most part, on the UBE it would be enough to analyze no-fault divorce.  But knowing a bit about how various states approach the question doesn't hurt when providing some background for the analysis.