Written by Leah Gleason
There is an interesting case coming out of Adams County, Nebraska that was recently argued at the Supreme Court of Nebraska that I thought would be a good topic for a blog post. A man is saying that no-fault divorce should not be allowed. He is a dedicated Catholic and does not believe in divorce. His wife filed for divorce on a “no-fault” petition, which is standard in Nebraska. Nebraska is one of the many of states that allow for “no-fault” divorces. What that means is that no one person is faulted for causing the divorce.
Historically, there have been “faults” for divorce such as infidelity, abuse, or abandonment. In states with “fault” grounds factor in the “bad” spouse’s behavior when awarding alimony and dividing property, if you can prove the fault occurred. In a fault divorce you have to prove up the fault. Let’s use infidelity as an example. If Spouse 1 files for divorce on the grounds of infidelity, they must prove that Spouse 2 had been unfaithful. This could be proven in a number of ways. The easiest would be to have Spouse 2 admit it and to move on with the divorce. Otherwise, Spouse 1 would have to put on evidence in court to show that Spouse 2 was cheating, which can sometimes be tricky. In addition to added costs and expenses, to complicate the process even more, there are defenses in fault divorces.
Much like defenses in criminal cases such as self-defense and insanity, there are defenses that can be raised in fault divorces. The most popular defenses include: (1) condonation – which is the approval of the other’s actions. If Spouse 1 finds out about Spouse 2’s infidelity, but doesn’t do anything about it for a while and then files for divorce, the inaction of Spouse 1 can be seen as condoning the adultery. (2) Connivance – where Spouse 1 sets up Spouse 2 to commit a wrongdoing. Think of this as Spouse 1 tempting Spouse 2 into taking a deal where Spouse 2 will go to jail, then Spouse 1 files for divorce under abandonment. (3) Provocation – Spouse 1 cannot provoke Spouse 2 into abandoning Spouse 1, the example in some textbooks include not showering/cleaning the home that provokes Spouse 2 into leaving. As you can tell, fault divorces get messy, which is why many states have gotten rid of them. Courts also do not like to make couples stay together.
When fault divorces were the norm, a couple could not get divorced except for those available to them in their state. When no-fault divorces became the norm, couples could get a divorce much easier. A couple must plead “irreconcilable differences” in their marriage for a no-fault divorce. Therefore, when Spouse 1 wants a divorce and Spouse 2 does not, this would be an irreconcilable difference in their marriage, thus giving them ground for dissolving the marriage. No-fault divorces take a lot of the emotions and drama out of divorces. While emotions run high regardless during divorces, the court does not find blame on any one person. It finds the marriage was irreconcilably broken and ends with that, granting the divorce.
It will be interesting to see how the Adams County case is decided by the Nebraska Supreme Court.