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Common Divorce Defenses



If your spouse files for a fault-based divorce, you and your attorney must decide whether it is necessary to offer a defense against the charges. The judge will hear both sides of the argument and then grant relief to (or find in favor of) one party. The judge's decision can affect alimony, child custody and support, and whether one party has to pay the other's legal fees and costs. There are several common divorce defenses you can use if your spouse files for a fault-based divorce.

Condonation as a Divorce Defense

According to Lawyers.com, "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." For example, if a woman sued for divorce on the grounds of adultery, the husband may defend himself by claiming his wife condoned the behavior.

For a condonation defense to be accepted, the court must find:

  • The condoning spouse knew of the other spouse's behavior
  • The condoning spouse forgave his or her spouses behavior
  • The condoning spouse continued to have sexual relations with his or her spouse

Reconciliation as a Divorce Defense

Reconciliation is a divorce defense that's similar to condonation. Reconciliation means that the spouse who filed for divorce has forgiven his or her spouse and they have resumed their marital relationship.

Reconciliation may refer to acts of forgiveness that occur before one spouse filed for divorce. However, as a divorce defense it more typically refers to acts of forgiveness that occur after filing for divorce but before the divorce is finalized.

Connivance as a Divorce Defense

Connivance occurs when one spouse consents to the other spouse's wrongdoing, then claims that wrongdoing as the grounds for divorce. For example, if a husband consented to his wife's affair, then filed for divorce on the grounds of adultery, the wife could defend herself claiming connivance. Connivance is most commonly used to defend oneself against adultery charges in divorces.

Recrimination as a Divorce Defense

According to Lawyers.com:

"Recrimination is when the spouse who is being accused of misconduct attempts to stop the divorce process by claiming that the other spouse is guilty of wrongdoing. … In some circumstances, recrimination prevents one spouse from obtaining a divorce from the other spouse where the spouse who is seeking divorce has also done something that would amount to grounds for divorce. Courts look at the circumstances of each case individually when considering the recrimination defense in a divorce case."

Many states have limited or entirely eliminated recrimination as a defense in divorce disputes.

Understand the Consequences

If your spouse has filed for a fault-based divorce, talk to your attorney about possible defenses. Your lawyer can help you understand what defenses are available in your state, and the possible legal consequences of those defenses.