No one likes to lose and no one likes to take the blame when something goes wrong. It's human nature. You see it everyday, at work or at school, for example. You see it in divorce sometimes, too.

In states where divorces are based one spouse's fault, a spouse on the receiving end of the divorce papers might be able to raise one of the several defenses to a fault-grounds divorce.

Common Defenses in Fault-Based Divorces

The defenses available to you vary from state to state. Here are some of the most common.

Collusion

Collusion is an agreement between spouses for one of them to commit, or at least appear to have committed, an act that qualifies as grounds for a fault-based divorce so that the other spouse can get a divorce. Why make such an agreement? In many states, getting a divorce based on grounds is quicker than a no-fault divorce. And, in a handful of states, only fault-based divorces are available.

You may be able to use collusion as a defense if, before the divorce is final, you change your mind about the divorce.

Condonation

Condonation is the forgiveness or acceptance by one spouse of the other spouse's wrongful behavior that otherwise could be used as grounds for a divorce.

An example of condonation is a husband who doesn't object to his wife's adultery. If the husband sues his wife for divorce, claiming she has committed adultery, the wife may argue as a defense that her husband condoned her behavior.

Proving Condonation isn't easy. The defending spouse needs to prove the other spouse:

  • Knew about the defending spouse's wrongful behavior
  • Forgave the defending spouse
  • Didn't deny the defending spouse sexual relations

Connivance

Connivance is when one spouse sets up or consents to a situation involving the other spouse who commits a wrongdoing, and that wrongdoing is grounds for a fault-based divorce.

An example is when one spouse gives the other spouse permission to perform an unlawful act, such as adultery. In that case the other spouse isn't considered to be at fault so a fault-based divorce won't be granted.

Connivance is used almost only in divorce actions based upon adultery. Connivance is different from collusion because, even though both spouses agree to the wrongdoing, the spouses haven't agreed in advance that a divorce is their goal.

Reconciliation

Reconciliation is a defense related to condonation. Like condonation, the reconciliation defense involves forgiveness on the part of the spouse that filed for divorce. The term often is used loosely to describe any forgiveness with resumption of the marriage relationship.

Reconciliation may include actions that happened before the divorce was filed, but more often it involves conduct that happened after the divorce was filed and before it became final. It simply means the spouses "kissed and made up."

Recrimination

Recrimination is when the spouse who is being accused of misconduct claims the spouse who filed for divorce is guilty of wrongdoing, and that wrongdoing is grounds for a fault-based divorce. Courts look at the circumstances of each case when considering the recrimination defense.

In some states, recrimination is a defense only where one spouse accuses the other of adultery and the spouse who is being accused wants to prove that the accusing spouse committed adultery too. In most states, any misconduct by the spouse filing for divorce that qualifies as for grounds for a divorce can be used by the other spouse to put a stop to the divorce proceedings.

Motives for Defending a Divorce

Why would a spouse choose to defend against a divorce, knowing that, at least as far as other spouse is concerned, the marriage is over? It's a personal decision, and only the defending spouse knows the true reason. But, sometimes it's pure ego - the spouse doesn't want to lose. Sometimes, a spouse simply doesn't want the marriage end, and raising a defense can stop the divorce, giving the spouse time to "make things right again."

More likely than not, however, a spouse may want to avoid being blamed for the failure of the marriage. That's because, in many instances, the spouse who is not at fault usually gets more when it comes to the property division or alimony or spousal support, for example.

Downside of Defending

Even when a defense is available, it may not be a good idea to raise it. In the first place, fault-based divorces usually are much more expensive than no-fault divorces, and raising a defense usually makes the divorce even more expensive and more time consuming. Without witnesses or other concrete proof, the divorce may turn into a "he said - she said" battle.

Also, the odds are, you won't "stop" the divorce. The courts are not in the business of forcing people to stay married when it's obvious that one or both spouses don't want to be married anymore.

Know & Weigh Your Options

These and other defenses may or may not be available in your state, and even if a defense is available, there may be limits on when it may be used. For instance, in some states, connivance can be used only when adultery is the grounds for divorce.

In any divorce, it's probably best to talk to your attorney about whether it's worth the time, money and effort to defend against a divorce action, or if it's better to work at ending the marriage in a calm and fair fashion.

Questions for Your Attorney

  • What defenses to a fault-based divorce are available in my state?
  • I filed for a no-fault divorce, and my spouse then filed for a fault-grounds divorce, claiming spousal abuse. What should I do, continue with my divorce, defend against my spouse's divorce or both?
  • Can I use phone conversations I tape recorded to prove my spouse is having an extra-marital affair?