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CAN'T WE ALL JUST GET ALONG? FAULT-BASED DIVORCES IN THE 1990s
© 1995 National Legal Research Group, Inc.
I. OVERVIEW
Before 1970, almost all American jurisdictions permitted divorce only upon proof of marital fault. This requirement was so strict that it could not be met by default or conceded by the opposing party; in essence, the divorce petitioner was opposed by society as well as the respondent. During the next two decades, a wave of no-fault divorce statutes swept the nation. These statutes varied greatly, but their total effect was to make divorce universally available without proof of fault.
The detached observer might have suspected that in light of these new statutes, fault-based divorces would gradually become like dinosaurs during the ice age and disappear. For a variety of reasons, however, this has not been the case. The most immediate of these reasons is economic: most states still consider fault as one factor in determining alimony, and a significant minority of states still consider fault as a factor in property division. Further, some religious denominations still view fault-based divorces as more acceptable than no-fault divorces, giving adherents of those religions an additional incentive to argue fault. Finally, many divorce litigants regard a fault-based divorce as a form of vindication for perceived wrongs done to them during the marriage. As long as human nature continues to seek such vindication, fault-based divorces are unlikely to become uncommon.
This article will examine modern divorce case law involving fault as a ground for divorce. The article first discusses the various types of fault, including extreme cruelty, desertion, adultery, personal indignities, and other grounds for divorce. Next, the article discusses the various defenses to fault, including condonation, connivance, collusion, and recrimination. In this section, it is important to note whether a particular defense is available when a plaintiff alleges a particular ground for divorce. For example, connivance may be an affirmative defense to adultery, but not to cruelty. Finally, the article concludes with a discussion concerning the reasons why parties continue to seek fault-based divorces even though divorces based on irreconcilable differences or lengthy separations are available in every state.
II. FAULT-BASED GROUNDS FOR DIVORCE
Traditionally, in jurisdictions that continue to recognize fault-based divorces, there are four major categories of fault that, if proven, would entitle the party to a divorce. These grounds include cruelty, desertion or abandonment, adultery, and personal indignities.
A. Cruelty
Cruelty has become perhaps the most popular fault-based ground for divorce. Cruel and inhuman treatment which would justify a fault-based divorce is conduct endangering life, limb, or health, or creating reasonable apprehension of danger, or unnatural and infamous conduct making marital relations revolting. Bland v. Bland, 620 So. 2d 543 (Miss. 1993).
1. Physical Cruelty
The general category of cruelty can be broken down into two separate categories: mental cruelty and physical cruelty. Unless the act of cruelty causes severe injury, one act of physical cruelty will not normally allow the innocent spouse to obtain a fault-based divorce. For example, in Bland v. Bland, 620 So. 2d 543 (Miss. 1993), the wife filed an action for divorce on the grounds of cruel and inhuman treatment. The wife's only evidence of cruelty was her own statement that the husband struck her on one occasion 10 years prior to the hearing. Even though her statement was the only evidence of cruelty, the trial court granted the wife a divorce on the grounds of cruelty, and the husband appealed. Id. at 544.
On appeal, the Supreme Court of Mississippi reversed the decision of the trial court to grant a divorce on the ground of cruelty. In reaching this decision, the court stated the proposition that "habitually cruel and inhuman treatment as a grounds for divorce consists generally of a course of conduct rather than a single act." Id. at 545. Hence, because the act in the present case was (1) remote and (2) did not cause the separation, the court held that the wife was not entitled to a cruelty-based divorce.
In addition, the case of Domin v. Domin, 188 A.D.2d 1026, 592 N.Y.S.2d 190 (1992), illustrates a fact scenario that would allow a party to obtain a divorce on the ground of physical cruelty. In Domin, on several occasions, the wife threatened the husband with a butcher knife. On one particular occasion, the wife stabbed the husband on the cheek with a paring knife. Also, the wife frequently threw objects at the husband and threatened to injure his genitals. Based upon this evidence, the court concluded that the husband was entitled to a divorce on the grounds of extreme cruelty.
The Domin case demonstrates that the court will consider two factors when determining whether to grant a divorce on the grounds of physical cruelty. First, the court will consider whether the acts of cruelty were isolated. If the acts were few and far between, the innocent spouse is unlikely to obtain a cruelty-based divorce. Second, the court will determine if the acts were so extreme that they endangered the health of the innocent spouse. If the acts amounted to mere rudeness, the innocent spouse will not be awarded the fault-based divorce. See also Hirschhorn v. Hirschhorn, 194 A.D.2d 768, 599 N.Y.S.2d 613 (1993) (divorce on the grounds of physical cruelty was granted where the husband grabbed the wife and the husband tried to hang the wife).
Two other facts are important considerations when determining whether a divorce based on the grounds of physical cruelty is appropriate. These facts are causation and corroboration. In order to be awarded the divorce grounded on physical cruelty, the innocent spouse usually must corroborate his or her testimony of cruelty and must display a causal connection between the marital breakdown and the cruel acts. The court reached this conclusion in Rawson v. Buta, 609 So. 2d 426 (Miss. 1992). In Rawson, the parties married in 1988. After the marriage, the husband's mother frequently visited the parties. According to the wife, because she complained about the mother's visits the husband had "several times drawn back as if to strike her." Id. at 428. Later, the husband demanded that the wife leave, but she refused. At the trial, the wife testified that the husband had grabbed her arms. Photographs indicated that her arms were visibly bruised from the incident. The wife filed an action for divorce on the grounds of cruel and inhuman treatment. The Mississippi Supreme Court held that the wife was not entitled to a divorce on the grounds of cruelty. Citing the case of Fournet v. Fournet, 481 So. 2d 326 (Miss. 1985), the court stated that a party is not entitled to a divorce on the grounds of physical cruelty unless there is a causal connection between the acts of cruelty and the parties' separation. In addition, the court stated that even though the wife corroborated the evidence of cruelty with photographs, the court held that photographs, without additional evidence, do not amount to sufficient evidence of cruelty:
- The rare occasion might arise in the future when photographs could provide the sole basis of corroborating evidence in a divorce action. But there was nothing in the nature of this particular action which precluded Buta from calling additional witnesses such as her children, Rawson himself, her mother-in-law, the photographer, or other witnesses to the marriage. The two photographs of Buta's bruised arms are simply not sufficient corroborating evidence given the availability of testimonial witnesses in this case.
Public policy probably indicates that the decision in Rawson was not helpful to abused spouses. Children and other people who are closely associated with the marriage will be highly reluctant to testify that one spouse beat the other. Furthermore, it is quite possible that physical cruelty will occur behind closed doors, out of the sight of children and the neighbors. A bright-line requirement that a spouse present witnesses, rather than simply photographic evidence, may prevent many just claims of abuse from ever being brought.
2. Severe Mental Cruelty
A survey of recent authority indicates that more divorce actions are being brought on the grounds of mental cruelty than actions based on physical cruelty. Similar to decisions concerning physical cruelty, mental cruelty-based divorces may only be appropriate if the acts of cruelty were repetitious and severe. Furthermore, courts are more likely to grant divorces on the grounds of mental cruelty if there is some evidence of physical abuse, although the amount of physical abuse alone may not entitle a party to a cruelty-based divorce.
For example, in the case of Saacks v. Saacks, 612 So. 2d 925 (La. Ct. App. 1993), the parties were married in 1969. In 1989, the wife filed an action for divorce on the grounds of adultery and physical cruelty. In his answer, the husband denied both charges. Also, the husband alleged that the wife's actions entitled him to a divorce on the grounds of mental cruelty, because the wife had "continually and without provocation argued with him, that she ridiculed and embarrassed him in public, and that she physically harmed him by throwing objects at him in private and in public." Id. at 926. After a hearing, the trial court found both parties at fault and granted a separation on the basis of "mutual cruelty." Id. Only the wife appealed this decision.
The court of appeals agreed with the trial court's decision that the wife's acts justified a divorce on the grounds of mental cruelty. The husband's testimony, as well as corroborating testimony from other witnesses, indicated that the wife frequently got drunk and threw flower arrangements at the husband. Also, the wife had called the husband at his place of employment and falsely reported that the husband's father had suffered a heart attack. Upon hearing this information, the husband sped home only to find the wife sitting on the parties' couch, laughing at him. Not amazingly, the court concluded that this evidence amounted to mental cruelty. The only surprising aspect of this case is that the wife bothered to appeal. The appeal did not result in a reversal.
The decision in Smith v. Smith, 614 So. 2d 394 (Miss. 1993), is also a fairly illustrative case concerning whether a party's actions will amount to mental cruelty. In Smith, the parties were married in 1987. The wife had a daughter from a previous marriage. During the parties' honeymoon, the wife revealed that she had continuing "fond thoughts" about her first husband. Id. at 395. Also at the honeymoon, the husband was injured when he fell off his horse. Rather than attending to her injured husband, the wife flew to the parties' residence to check on her daughter. Later, the daughter and the wife met up with the husband in Texas. There, the wife informed the husband that she was pregnant. One month later, the wife flew off to South Dakota in order to meet with her first husband. Id.
The wife threatened to abort the husband's child. The wife reasoned that if the parties became divorced, she did not want one child visiting with her first husband, while the second child visited with the second husband. She believed that this situation would make her "a poor prospect for a third marriage." Id. The wife repeatedly threatened to abort the child if the husband did not meet her demands du jour. Nonetheless, the child was born. In 1989, the husband filed for divorce on the grounds of habitual cruel and inhuman treatment. The trial court awarded a divorce on these grounds, and the wife appealed. This decision was affirmed.
For other recent decisions where the court held that a spouse's acts were extreme enough to justify a divorce on the grounds of mental cruelty, see Muhammad v. Muhammad, 622 So. 2d 1239 (Miss. 1993) (husband was a member of an extremist sect of the Muslim religion which required the parties to live in one room of a small house, and the wife was not allowed to travel, make telephone calls, or have any control of the parties' finances; divorce granted on the grounds of mental cruelty); Osman v. Keating-Osman, 521 N.W.2d 655 (S.D. 1994) (mental cruelty-based divorce granted where the husband repeatedly walked out on the marriage without attempting to resolve the parties' differences). See also McCann v. McCann, 156 Misc. 2d 540, 593 N.Y.S.2d 917 (Sup. Ct. 1993) (no fault-based divorce simply because the husband refuses to have sexual relations with the wife).
III. DESERTION OR ABANDONMENT
Another common ground for a fault-based divorce is desertion or abandonment.
A. Actual Abandonment
In order to prove actual abandonment, a party must show that the opposing party left the marital residence with the intention not to return and without cause or provocation. Based upon this standard, the court held that an abandonment had occurred in the recent case of Kaufman v. Kaufman, ___ A.D.2d ___, 616 N.Y.S.2d 65 (1994). In Kaufman, after a 20-year marriage, the husband vacated the marital residence on December 11, 1990. As of July 1992, the husband had not returned. The court concluded that the wife was entitled to a divorce on the grounds of abandonment because the husband had left the residence without provocation and without the intent to return. 616 N.Y.S.2d at 67; see also Skannal v. Skannal, 631 So. 2d 558 (La. Ct. App. 1994) (wife was guilty of abandonment where she left the marital home without provocation, she could not corroborate her claims that the husband had committed violent acts against her, and she refused to discuss her differences with the husband).
In unusual circumstances, the court will not require that a party vacate the marital residence in order to prove a claim of abandonment. The case of Defeo v. Defeo, 159 Misc. 2d 490, 605 N.Y.S.2d 202 (Sup. Ct. 1993), presented such unusual circumstances. In Defeo, the husband was arrested in 1974 and charged with six counts of murder in the second degree. Approximately one year later, the husband was sentenced to 150 years of imprisonment. While the husband was incarcerated, the parties were married in the visiting room in 1989. In March of 1991, the wife changed her mind about the marriage. She entered the correctional facility visiting room and informed the husband that she no longer loved him. Also, following this visit, the wife refused to communicate with the husband.
The court concluded that these acts by the wife amounted to abandonment. In reaching this decision, the court noted that the parties married with the expectation that the husband would be incarcerated indefinitely. The court further concluded that the visiting room was the parties' domicile. Hence, because the wife refused to return to the prison, in effect, she had abandoned the parties' domicile. Therefore, the husband was entitled to a divorce on the grounds of abandonment. The court implied, however, that the husband would not be entitled to such a divorce if the parties had married before the husband had committed the murders. In that instance, the court reasoned, the wife would not have married the husband with the expectation that the husband would have been incarcerated after killing people. 605 N.Y.S.2d at 203.
Of course, a party is not required to remain in the marital dwelling if he has just cause to abandon the marriage. Where one spouse has committed cruel acts against the other spouse, the innocent spouse may abandon the parties' abode without fear that the other party will be able to obtain a divorce on the grounds of abandonment. In order for a spouse to justifiably abandon the other spouse, the acts committed by the other spouse need not amount to cruelty which would entitle the abandoning spouse to a fault-based divorce. This decision was reached in Gottlieb v. Gottlieb, ___ Va. App. ___, 448 S.E.2d 666 (1994). In Gottlieb, the parties separated in 1987 after 24 years of marriage. The wife left the marital home on the recommendation of her psychologist, who had concluded that the parties' marital situation threatened the health of the wife. 448 S.E.2d at 668. The wife sued for divorce on the grounds of constructive desertion, but this complaint was dismissed. Later, the husband filed for divorce on the grounds of desertion, and the wife counterclaimed for a no-fault divorce. The trial court dismissed the husband's complaint and awarded the wife a no-fault divorce. The husband appealed, arguing that because the wife could not obtain a divorce on the grounds of cruelty, she was not justified in abandoning the residence. Id. at 669.
The Virginia Court of Appeals held that the wife was justified in abandoning the marital abode even though the husband's acts did not entitle the wife to a fault-based divorce. After reviewing the wife's testimony, as well as that of the wife's physician, the court concluded that the wife reasonably believed that her health would be endangered if she remained in the house.
Furthermore, the wife unsuccessfully attempted other measures to remedy the situation before she left the residence. Therefore, even though the wife was not entitled to a fault-based divorce, she could leave the marital residence without fear of recrimination.
B. Constructive Abandonment
Occasionally, where one spouse vacates the marital residence, if the vacation was justified on some fault ground of the other party, the vacating spouse will be entitled to a divorce on the grounds of constructive abandonment. For example, in Chase v. Chase, ___ A.D.2d ___, 618 N.Y.S.2d 94 (1994), the husband filed a complaint for divorce on the grounds of constructive abandonment. In support of his claim, the husband presented evidence that the wife had refused to have sexual relations with the husband for at least one year prior to the date that the husband filed the action. Furthermore, the husband proved that the refusal was "willful, continued, and unjustified." 618 N.Y.S.2d at 95. Because of the wife's refusals, the court held that the husband was entitled to a divorce on the grounds of constructive abandonment, even though the facts did not indicate that either party had actually abandoned the other. Therefore, if one party makes the marriage intolerable, the other party may be entitled to a fault-based divorce even if no actual abandonment occurs. The party who has made the marriage intolerable is said to be guilty of constructive abandonment.
IV. ADULTERY
At one time, adultery was a popular ground for divorce. See 27A C.J.S. Divorce § 60 (1986). However, because of the availability of no-fault divorces, and because of the problems of proving that the adultery occurred, fewer spouses have brought divorces on the grounds of adultery in recent years.
The difficulty in proving the adultery was presented in the case of Fowler v. Fowler, 636 So. 2d 433 (Ala. Civ. App. 1994). In Fowler, the parties separated after 32 years of marriage. The husband was 58 years old, and the wife was 52 years old. As grounds for divorce and alimony, the wife alleged that the husband was romantically involved with a 36-year-old co-worker. As evidence of the adultery, the wife presented telephone records. These records showed that on nearly a daily basis, the husband had made lengthy calls to the co-worker. Also, the husband had made several long-distance, collect calls to the co-worker. The husband also admitted that he made several calls to the co-worker from the parties' lake cabin, while visiting his parents, and while attending an out-of-state football game. There was also testimony that the co-worker had visited the parties' lake home and the parties' residence. The husband had also given the co-worker flowers and had visited the co-worker at her apartment on three occasions. Furthermore, the husband had ceased sexual relations with the wife because the wife had an unusual sexual problem that caused an unsatisfactory sexual relationship. Id. at 435. Based upon this evidence, the trial court concluded that the wife was entitled to a divorce on the grounds of adultery, and the husband appealed.
In spite of the evidence presented at trial, the court of civil appeals reversed the decision of the trial court to award a divorce on the grounds of adultery. The court concluded that the evidence only created a "suspicion" of adultery, not a "conclusion of adultery as a necessary inference." Id. at 436. Thus, in order to justify a divorce based on adultery, the adultery must be proven conclusively. See Stewart v. Stewart, 422 So. 2d 1370 (La. Ct. App. 1982) (degree of proof of adultery by circumstantial evidence is similar to the degree of proof necessary to convict a criminal defendant; evidence consisting only of testimony of a private investigator that he saw a man visit the wife's residence on several occasions was not sufficient to sustain a divorce on the grounds of adultery); 27A C.J.S. Divorce § 193 (1986) (adultery-based divorce may only be granted if the evidence excludes all other rational theories or reasonable possibilities of innocence).
If the innocent spouse can pull off the miracle of actually proving the adultery, the innocent spouse may be entitled to a divorce on the grounds of adultery even if the adultery occurs after the date of separation. For example, in Barnes v. Barnes, 16 Va. App. 98, 428 S.E.2d 294 (1993), the parties were married in 1981. During the mid-1980s, the marriage began to deteriorate. The wife complained to the husband, president of an insurance adjuster's firm, that he did not spend enough time with her. In 1990, the wife filed for divorce on the grounds of mental cruelty and desertion. The husband countered that the wife had committed postseparation adultery. The trial court agreed with the husband that the wife had committed postseparation adultery. Also, the court concluded that the husband was not guilty of cruelty or constructive desertion. Hence, the court granted the husband a divorce on the grounds of adultery. 428 S.E.2d at 297. Even though the adultery occurred after the date of separation, and long after the marriage had completely broken down, the court of appeals sustained the trial court's decision to award a divorce on the grounds of adultery. Id. Thus, regardless whether the adultery occurred before or after the marriage has broken down, an innocent spouse may be entitled to a divorce on the grounds of adultery. See 27A C.J.S. Divorce § 60 (1986).
V. OTHER FAULT GROUNDS FOR DIVORCE
A. Personal Indignities
A few states recognize that personal indignities is a ground for divorce. Unlike cruelty, this ground does not necessarily involve fear of physical or mental harm. Rather, to qualify as a ground for divorce, the indignity must be to the person of the injured spouse, and it must consist of a course of conduct calculated to make the life of the complaining party intolerable. See 27A C.J.S. Divorce § 53 (1986). Unlike cruelty, this ground for divorce consists of vulgarity, rudeness, haughtiness, neglect, incivility, ridicule, or abusive language. Pomraning v. Pomraning, 13 Ark. App. 258, 682 S.W.2d 775 (1985); Coffey v. Coffey, 223 Ark. 607, 267 S.W.2d 499 (1954). Similar to the grounds of cruelty, a single act of personal indignity is not ordinarily a sufficient ground for divorce. Bridwell v. Bridwell, 217 Ark. 514, 231 S.W.2d 117 (1950).
B. Habitual Drunkenness
If a person abuses alcohol, and the abuse causes the marriage to break down, the innocent spouse may file a claim for divorce on the grounds of habitual drunkenness. In the recent case of Epperly v. Epperly, ___ S.C. ___, 440 S.E.2d 884 (1994), the Supreme Court of South Carolina reaffirmed that habitual drunkenness is a separate ground for divorce. In Epperly, the wife and several witnesses testified that the husband consumed alcohol regularly. The husband and other witnesses testified, however, that the husband rarely consumed alcohol. Even though the court chose to believe the husband, the court wrote that habitual drunkenness remains a separate ground for divorce if the innocent spouse can prove that "the abuse of alcohol caused the breakdown of the marriage and that such abuse existed at or near the time of filing for divorce." 440 S.E.2d at 885.
In contrast to the decision by the South Carolina Supreme Court, at least one other court has written that alcoholism is an illness, not a fault. Barry v. Barry, 511 So. 2d 649 (Fla. Dist. Ct. App. 1987). For this reason, practictioners should be cautious when alleging the ground of habitual drunkenness. Perhaps it would be more persuasive if the innocent spouse could allege that the drunkenness or use of narcotics caused the defendant to commit cruel acts against the innocent spouse. See Hudgins v. Hudgins, 181 Va. 81, 23 S.E.2d 774 (1943) (wife's habitual drunkenness led to conduct which constituted cruelty).
VI. DEFENSES TO FAULT-BASED DIVORCE
There are four major defenses to the fault grounds for divorce. Ordinarily, the burden is on the defendant to prove these defenses. Hunter v. Hunter, ___ A.D.2d ___, 614 N.Y.S.2d 784 (1994). These defenses include recrimination, connivance, condonation, and reconciliation.
A. Recrimination
Under the defense of recrimination, if the defendant and the plaintiff are both guilty of a fault ground, neither party is entitled to a fault-based divorce. The court addressed this issue in the case of Hunter v. Hunter, ___ A.D.2d ___, 614 N.Y.S.2d 784 (1994). In Hunter, the parties were married in 1961 and the wife filed a complaint for divorce in 1987 on the grounds of cruel and inhuman treatment. Later, she amended the complaint in order to allege the additional ground of adultery. The husband alleged the affirmative defense of recrimination. At the hearing, evidence was presented that the wife received a card on Valentine's day that was signed "Love, Jerry." 614 N.Y.S.2d at 785. The wife admitted visiting Jerry on several occasions at his camp and at his home in New Jersey. Finally, the wife admitted that she had had intercourse with Jerry.
There was also substantial evidence presented that the husband had sexual relations with someone who was not his wife. One woman admitted that she had lived with the husband and had gone on extended vacations with the husband. A private investigator revealed that he had seen the husband and the woman kiss and hug and go upstairs in the direction of a bedroom.
The trial court concluded that only the husband, not the wife, had committed adultery. Therefore, the trial court dismissed the defendant's claim of recrimination. On appeal by the husband, the appellate division affirmed the trial court's decision to dismiss the defense of recrimination. The appellate division noted that the defense of recrimination applies if "the plaintiff has also been guilty of adultery under such circumstances that the defendant would be entitled, if innocent, to a divorce." Id. at 786 (quoting N.Y. Dom. Rel. Law § 171(4) (McKinney 1994)). Even though the wife admitted to having sexual relations outside of the marriage, the appellate divisions held that such evidence does not prove adultery. Therefore, since there was not enough evidence to award the husband a divorce on the grounds of adultery, the doctrine of recrimination did not prevent the wife from achieving an adultery-based divorce.
In the nonadultery context, courts are often reluctant to apply the doctrine of recrimination. Rather, when both parties are guilty of some fault, one recent decision held that it is proper to award a fault-based divorce to the more innocent spouse. In Hyer v. Hyer, 636 So. 2d 381 (Miss. 1994), the parties were married in 1988 and separated in 1991. The wife filed a claim for divorce alleging cruel and inhuman treatment, and the husband filed a cross-complaint alleging the same ground for divorce. The evidence revealed that frequently the parties would argue and the wife would leave the marital home. On one occasion the wife left for four to six months. To counter this evidence, the wife presented evidence that the husband had physically injured the wife on one occasion. The trial court granted both parties a divorce on the grounds of cruel and inhuman treatment. Id. at 382.
On appeal to the Mississippi Supreme Court, the court held that both parties may not be awarded a divorce on the grounds of cruel and inhuman treatment. In making this decision, the court reasoned that a person cannot obtain a divorce on the grounds of cruelty unless the cruelty was the proximate cause of the separation. Both parties, the court believed, cannot create events which are the proximate cause of the separation. Because both parties cannot obtain a divorce on this ground, the court held that where both parties are guilty of fault, the trial court "must determine which party's conduct was the proximate cause of the deterioration of the marital relationship and the divorce itself." Id. at 384. If spouse A's conduct was the proximate cause, spouse B is entitled to a fault-based divorce. Based upon this analysis, the court held that because the husband was "less at fault," the husband was entitled to a cruelty-based divorce.
The court's reasoning in Hyer is unclear. First, the court indicates that only one party's acts could be the proximate cause of the separation. There is no reason why both parties cannot commit acts which lead to a marriage's demise. It is quite often the case that both parties commit cruel acts against each other. In such instances, there is no reason to award one party a fault-based divorce, while not awarding the other party a divorce on similar grounds.
Second, the Mississippi Supreme Court has apparently decided to bring the traditional tort principle of comparative fault into the divorce context, as if modern divorces were not already contentious enough. This type of oneupmanship may be appropriate when society seeks to compensate tort victims who are less guilty than their opponents. In the divorce context, however, spouses frequently have to deal with each other after the divorce. For example, parties often must act civil around their children. For this reason, it is important for courts to discourage parties in divorce cases from piling on evidence of cruelty by their opponent for the sole purpose of proving that they were the less guilty spouses and, therefore, entitled to fault-based divorces. There is nothing in the opinion in Hyer to indicate that the court addressed this latter argument.
Finally, it is possible that the court's position in Hyer could cause protracted trials concerning the issue of fault. In reality, the issue of fault is usually of little importance, except that a party may receive a psychological boost if a court declares that the other party caused the divorce. Possibly, fault may affect the division of property or alimony. But if alimony or property division will not be affected by the fault of the parties, perhaps it is better that the court not determine which party is more at fault. Rather, if both parties are at fault, the court should grant each party a fault-based divorce and leave it at that. In the world of torts, tortfeasors often purchase insurance or otherwise protect themselves against protracted litigation and its accompanying attorney's fees and costs. In contrast, there is no such thing as divorce insurance, so the courts should place limits, whenever possible, on endless litigation over tangential issues.
B. Condonation and Connivance
Condonation occurs when an innocent spouse expressly or impliedly forgives the other party's misgivings. Martin v. Martin, 166 Va. 109, 184 S.E. 220 (1936). Condonation is a defense to adultery, desertion, and cruel and inhuman treatment. 27A C.J.S. Condonation § 80 (1986). Although similar, connivance is a different affirmative defense than condonation. Connivance is the innocent spouse's consent, expressed or implied, to the misconduct alleged as grounds for divorce. 27A C.J.S. Connivance § 85 (1986). Thus, condonation occurs when a party forgives a fault, whereas connivance occurs when a party consents to a fault. Unlike condonation, connivance is practically limited as a defense to adultery. Id; see also Dorian v. Dorian, 298 Ill. 24, 131 N.E. 129 (1921) (husband did not condone wife's habitual drunkenness by purchasing alcohol).
The case of Hollis v. Hollis, 16 Va. App. 74, 427 S.E.2d 233 (1993), dealt with the issues of connivance and condonation. In Hollis, the husband filed an action for divorce. In her cross-bill, the wife alleged that on or about May 24, 1990 the husband began to commit adultery. The husband admitted that he had sexual relations with another woman. However, the husband alleged that his wife had encouraged him to date other women. According to the husband, the wife hoped that he would fall in love with someone else so that she could get out of the marriage. When the husband began "dating," the wife sent the husband and his paramour flowers. The trial court concluded that the husband's adultery resulted from the wife's connivance and granted the husband a no-fault divorce. 427 S.E.2d at 235.
On appeal to the Virginia Court of Appeals, the court affirmed the decision of the trial court to grant a no-fault divorce. In reaching this decision, the court carefully distinguished connivance from condonation. Connivance, the court wrote, "denotes `direction, influence, personal exertion, or other action with knowledge and belief that such action would produce certain results and which results are produced.'" Id. (quoting Greene v. Greene, 15 N.C. App. 314, 190 S.E.2d 258, 260 (1972)). In contrast, condonation is "one spouse's forgiveness of the other spouse's adulterous misconduct, usually evidenced by resumption and continuation of apparently normal matrimonial relations." Hollis v. Hollis, supra, 427 S.E.2d at 235. Condonation is also distinguishable from connivance in terms of timing: "Condonation, it follows, may only occur after the occurrence of the misconduct and differs from connivance in when the act of consent or, in the case of connivance, influence occurs. While condonation occurs after the misconduct, connivance occurs before the misconduct." Id. The court held that because the wife encouraged the adultery, the defense of connivance prevented the wife from obtaining an adultery-based divorce. While the court did not address whether the adultery had been condoned, because the parties never resumed normal marital relations, it was probably the case that the adultery was never condoned.
C. Reconciliation
While similar to the defense of condonation, reconciliation is distinguishable in that reconciliation will completely abrogate a pending action for divorce, whatever the grounds. In fact, reconciliation will deprive the court of jurisdiction to consider a divorce matter. James v. James, 369 So. 2d 811 (Ala. Civ. App. 1989).
Normally, reconciliation is a question of intent: if the parties intended to again live together as husband and wife, a reconciliation has occurred and the cause of action for divorce terminates. Nonetheless, it is often the case that because the court cannot read parties' minds, the court will consider as determinative the duration of the period of time when the parties have resumed marital relations. Thus, if the parties only resumed relations for a few weeks, a reconciliation has not occurred. If the parties resumed relations for a long duration, the court is more likely to determine that a reconciliation has occurred. For example, in the case of Rikard v. Rikard, 387 So. 2d 842 (Ala. Civ. App. 1980), the wife removed herself from the marital residence on December 17, 1979. On December 19, 1979, the wife moved back in for the sake of the parties' minor daughter. On January 10, 1980, the parties again separated. Before the second separation, the husband was served with a summons and complaint for divorce. The issue was whether the parties had reconciled and, therefore, abrogated the action for divorce. The trial court determined that no reconciliation had occurred. Id. at 845.
The Alabama Court of Civil Appeals affirmed the decision of the trial court. The court stated that because reconciliation is a question of the intent of the parties, the duration of the cohabitation was "immaterial" to the issue of reconciliation. Id. at 844. Nonetheless, the court concluded that because the resumption of marital relations lasted for only the duration of the Christmas holiday, a reconciliation did not occur. Thus, although the duration of the resumption of relations is technically irrelevant, the duration is often determinative on the issue.
VII. CONCLUSION
Over the past 30 years nearly every state has adopted some type of no-fault divorce provision. See generally Lichtenstein, Marital Misconduct and the Allocation of Financial Resources at Divorce: A Farewell to Fault, 54 UMKC L. Rev. 2, 4 (1985). Thus, if parties are willing to remain separate for the statutory waiting period, they may obtain a divorce on the grounds of irreconcilable differences regardless of whether either party was guilty of some fault ground. In fact, in some states, the legislature has rewritten their divorce statutes in order to provide that the sole ground for divorce is irreconcilable differences. See generally Hayes, California Divorce Reform, 56 A.B.A. J. 660 (1970).
Nonetheless, in spite of the universal availability of no-fault divorces, as the authority discussed in this article indicates, whether a party may obtain a fault-based divorce remains a significant issue.
One reason that fault-based divorces continue to be widely sought is that a party's ability to obtain a fault-based divorce may affect other issues, such as alimony and property division. For example, in Virginia, the relevant statute provides that in determining whether to award alimony, the court must consider any fault ground that would entitle a party to a fault-based divorce. Va. Code Ann. § 20-107.1 (Supp. 1994). Likewise, in Michigan, in determining the proper division of the parties' marital property, the court should consider the fault of either party, even if the fault had no effect on the parties' property. Sparks v. Sparks, 440 Mich. 141, 485 N.W.2d 893 (1992). Thus, whether a party may obtain a fault-based divorce may have a significant impact upon the division of property and alimony. For more information concerning the effect of fault on support and the division of property, see Borris, Regulating Marital Conduct, The Role of Fault in Spousal Support Cases, 5 Divorce Litigation 159 (1993); B. Turner, Equitable Distribution of Property § 8.09 (2d ed. 1994).
In addition, it is also often the case that one party desires to end an abusive relationship by vacating the marital home without being accused of desertion. For this reason, the party would want to leave and immediately file a claim for divorce on the ground of cruelty. See generally Clute, Divorce Denied: Have Mental Cruelty, Constructive Desertion and Reasonable Apprehension of Bodily Harm Been Abolished in Virginia?, 25 U. Rich. L. Rev. 273 (1991).
Finally, unlike typical tort cases, parties are often concerned about assigning blame for the divorce. Psychologically, the healing process for one spouse may begin more quickly if the court declares that the divorce was caused by the other party. See generally Wardle, No-Fault Divorce and the Divorce Conundrum, 80 B.Y.U. L. Rev. 79 (1991). It makes no difference to some spouses that it is likely that both spouses made significant contributions to the break-up of the marriage. See generally L. Weitzman, The Divorce Revolution 358 (1985). Hence, for this reason, more than any other, fault will probably remain an issue in many future divorces.
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