How to Determine Grounds for Divorce

When you divorce, you must give the court a reason, which is called your “ground.” You can get a “no fault” divorce in all jurisdictions, which means you don’t need to show your spouse did something wrong. Some states, such as California, Michigan, and Florida, are “no fault exclusive,” meaning that you can’t claim any traditional grounds for divorce. However, many jurisdictions still allow you to claim fault. Read the relevant law to see what types of fault you can raise.

Part 1

Part 1 of 3:

Reading Your Jurisdiction’s Laws

1
Identify where you want to divorce. Each jurisdiction has its own laws, so you first need to figure out where you will file for divorce. In most places, you must have been a resident of the jurisdiction for a certain amount of time.
- In the U.S., most states require that you have lived in their state for at least six months or one year.^{[1]XResearch source}
2
Find your jurisdiction’s fault grounds. Go online and type the name of your country or state and “divorce grounds.” Read through to see what grounds are available. They should be listed. Common grounds include the following:^{[2]XResearch source}
- Adultery
- Abandonment
- Cruelty
- Imprisonment
- Mental illness
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3
Consult with an attorney. You might not understand the laws or you might have questions. In either situation, you should consult with a qualified divorce attorney who can explain the laws to you.
- Get a referral from the nearest bar association. Call up the attorney and ask if you can schedule a consultation.
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Part 2

Part 2 of 3:

Understanding Each Ground

1
Learn about no-fault divorce. No-fault divorce means you don’t have to prove that your spouse did anything wrong. Instead, you just claim that there are “irreconcilable differences” or an “irreparable breakdown of the marriage.”^{[3]XResearch source} Essentially, a no-fault divorce simply means, “I don’t want to be married anymore.”
- Some jurisdictions, however, will require that you separate from your spouse for a certain amount of time before they will grant you a no-fault divorce.
2
Check what qualifies as adultery. Adultery is a common ground for divorce in most jurisdictions. However, you have to prove the adultery occurred. For example, you might need to use a private investigator to catch your spouse and their lover in action.
- Alternately, you might use indirect proof. For example, you can find hotel receipts or love letters, emails, or text messages.^{[4]XResearch source}
3
Analyze abandonment. Abandonment, or desertion, can take two different forms: constructive or physical. You should read your jurisdiction’s laws to understand the details of what you must prove.
- Physical abandonment. Your spouse gets up and leaves you permanently. Before you can claim abandonment as a ground, a certain amount of time must have passed, which will depend on where you want to divorce. For example, in Utah, your spouse must desert you for at least a year.^{[5]XResearch source}
- Constructive abandonment. Your spouse can abandon you even without leaving your home. For example, they might withhold certain essential aspects of marriage, such as financial support, intimacy, or affection. In some jurisdictions, your spouse’s impotency might qualify.
4
Understand prison confinement as a ground. When your spouse is sent to jail, you might be able to use their imprisonment as a ground for divorce. However, read your jurisdiction’s law closely. There are usually some wrinkles.
- For example, your spouse usually must be imprisoned for a certain amount of time. In New York, they must be imprisoned for at least three years.
- Also, your spouse must have been imprisoned after you were married. You can’t marry your prison pen pal and then claim imprisonment as grounds for divorce.^{[6]XResearch source}
- You might be able to claim imprisonment even after your spouse has been released. For example, New York lets you use this ground for up to five years after your spouse has been released.
5
Check what qualifies as cruelty. In some jurisdictions, cruelty is also called “abuse,” “indignities,” or “neglect.” Generally, you must prove that the cruelty made staying in the marriage impossible. The following types of behavior typically qualifies as cruelty:^{[7]XResearch source}
- Physical violence, such as punching, kicking, or slapping you.
- Constant rage or anger, which results in screaming or yelling at you. This can’t be a one-time event.
- Endlessly criticizing or belittling you.
- Flaunting an extramarital affair.
- Falsely accusing you of adultery.
- Picking up a sexually transmitted disease and not telling you.
6
Learn when mental illness qualifies. Some jurisdictions will consider mental illness a reason for divorce if it meets certain requirements. For example, Kansas will allow you to divorce if your spouse has been institutionalized for mental illness for at least two years.^{[8]XResearch source}
- Check whether your jurisdiction has similar requirements.
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Part 3

Part 3 of 3:

Choosing a Ground for Divorce

1
Choose a no-fault divorce if your spouse will fight you. When you file for a no-fault divorce, your spouse can’t object. The objection itself is proof that the marriage has broken down.^{[9]XResearch source} However, if you claim some other ground, then your spouse can object.
- For example, you might file for divorce on grounds of abandonment. If your spouse objects, you’ll need to gather evidence and present it to the judge in court. This will take time and money. You also might lose, which means you might not get divorced.
- Choosing a no-fault divorce is usually the safest bet.
2
Analyze if your spouse has defenses. There is no defense to no-fault divorce. However, you shouldn’t raise a fault-based ground if your spouse has a defense to it. Consider the following defenses:^{[10]XResearch source}
- Condonation: You’ve forgiven or accepted the behavior. For example, if your spouse committed infidelity, you might have forgiven them.
- Connivance: Your spouse committed adultery, but you gave them permission to do so.
- Recrimination: You’re equally at fault, or had similar conduct. For example, if both you and your spouse had an affair, neither of you would be able to claim adultery was your grounds for divorce.
- Provocation: Your spouse was justified by your actions to act in a certain way. For example, if one spouse abuses the other, they wouldn’t be able to use abandonment as grounds for divorce, because their own actions caused the abandonment.
- Collusion: you’re colluding to create a reason to divorce. For example, it might be easier to get a fault-based divorce than a no-fault one. You and your spouse agree to pretend that there has been domestic violence so you can divorce quickly. If your spouse changes their mind, they can raise this defense.
Unless you want someone reading through the ugly details of your divorce, you might want to choose a no-fault divorce. That way, people can’t uncover your family secrets. A no-fault divorce is a good way to maintain your dignity and start a new chapter of your life.
4
Check how fault affects the distribution of property. Most jurisdictions try to divide a married couple’s property fairly when they divorce. However, some jurisdictions consider fault when dividing property. For example, if you can show that your spouse was unfaithful, then you might get more.^{[11]XResearch source}
- Review the relevant law to see if a judge will consider fault when dividing property.
- Also identify which grounds they will consider—not every ground will affect the distribution of property.
5
Consider abandonment as a ground if you have children. When your spouse abandons the family, you end up with de facto custody of the children. It will be very easy for you to turn that de facto custody into a permanent custody arrangement approved by the judge.^{[12]XResearch source} In this situation, you might want to seek a divorce based on abandonment.
- However, in some jurisdictions, you can also seek a no-fault divorce but introduce evidence of abandonment later, when fighting over child custody. Check the relevant law.
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