Fault-based Divorce: Cruelty

Fault-based Divorce: Cruelty

A marriage is a contract that cannot be terminated without the intervention of a court. In its most basic sense, divorce is the legal process that ends the institution of marriage between two people.

Divorce in the United States is a matter of state law. In most states, a marriage can be terminated by an action for divorce, dissolution, or annulment. In recent years, however, more federal legislation has been enacted affecting the rights and responsibilities of divorcing spouses. It is the law of the state(s) of the parties’ residence at the time of the divorce, not the law of the state(s) in which the parties currently reside, which governs in divorce cases.

There are two basic approaches to divorce: fault-based divorce and “no fault” divorce. Most states permit a “no fault” divorce on the grounds that the marriage is irretrievably broken. Some states still require a fault-based divorce, some allow no-fault divorces, and a few states permit both. The fault grounds or reasons for divorce vary from state to state. Cruelty is a specific fault ground for divorce in most of the states that allow fault based divorces. Prior to the introduction of no-fault divorce grounds, cruelty was the most frequently used reason in seeking a divorce.

Whether a spouse has committed the act of cruelty against the other spouse is determined on a case-by-case basis. Cruelty may consist of physical violence; other conduct that endangers the life or safety of the complaining spouse; abusive or derogatory language; neglect; humiliation; threats of violence, etc. A single act of cruelty must generally be extreme to be sufficient for filing a divorce complaint. There is great variance among the state law definitions regarding what actions are considered cruel. State laws that define cruelty as a ground for divorce require more than showing that your spouse has a temper. Generally, cruelty involves actions that harm or endanger mental or physical health. Additionally, several states allow divorce based on a similar but less strict ground of “indignities” or “neglect.” State laws that define indignities refer to mental abuse.

Examples of acts that have been considered cruelty are:

  • Physical attacks upon a spouse;
  • A spouse, knowing he or she is afflicted with a sexually transmitted disease, continues to maintain sexual relations and communicates the disease to the other spouse, who did not know about the disease;
  • Repeatedly yelling, screaming or displaying rage;
  • Constantly criticizing a spouse’s abilities as a homemaker, breadwinner, parent or spouse;
  • Staying away from the house too often without an explanation;
  • Publicly flaunting a relationship with another man or woman; and
  • Wrongfully accusing the other spouse of adulterous relations with another man or woman.

If you or someone you know are considering filing for divorce on the basis of mental or physical cruelty, it is important to remember that the acts of cruelty must be severe enough that it is not proper or safe for the couple to continue living together. The treatment must be more than mere incompatibility between husband and wife.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.