Historic Defenses to Divorce
Under traditional fault grounds, one spouse could defeat the claims of fault by the other spouse by raising certain defenses. Under a no-fault system, one could still litigate – or argue in court – the divorce claims, but the traditional defenses do not apply. A divorce that is argued over is called a contested divorce; one that is not argued is called uncontested. In an uncontested divorce, the final judgment is entered without a trial.
Actually, there still are defenses to divorce, in those states that recognize fault divorce. The three C’s -- collusion, condonation, connivance, -- as well as provocation, and the counterattack called recrimination. At one time, any of the three C’s would have been an adequate defense against an allegation of adultery.
The mere agreement to divorce, absent a lie or a fraud, is not collusion, and is in fact a requisite step in setting a separation date important for the classification of marital assets. Of course, the mere agreement to divorce was not, traditionally, an adequate grounds for divorce prior to no-fault and liberalization of divorce.
Collusion is a secret agreement between two or more parties for a fraudulent or illegal purpose. Black’s Law Dictionary notes that frequently in divorce, collusion is "an agreement between husband and wife that one of them shall commit, or appear to have committed acts constituting a cause of divorce."
Collusion requires some sort of fraud on the court, so much so that at one time courts required the parties to certify that they had not acted collusively. In the old fault-only days, couples who wanted a divorce agreed, one with the other, to say that one of them had committed a fault that would give rise to divorce. This usually meant adultery. Essentially the couple tried to defraud the court, and before the case was over both of them perjured themselves.
Collusive divorce often became an art form in the good old days in an inventive way known to many as a "hotel divorce." Two unhappy spouses colluded. One would give the other the evidence she (it was usually the she) needed to prove adultery. He would arrange to be in a "hot sheet" hotel room in a compromising way with the object of his affection (or sometimes just a stand-in). At the appropriate moment, the spouse would open the door and a private detective, camera clicking, captured the two of them in the midst of their assignation. The tail wagged the dog, in a manner of speaking, but the photographic evidence met the test and filled the bill (particularly when the parties also arranged to be in a state of undress). The hotel divorce was a set-up -- an event staged to gather evidence. Basically, the couple lied and presented evidence that would tend to suggest adultery by one or the other.
Carried out in secrecy, adultery easily lends itself to meeting the two-prong test: the disposition and opportunity rule created a presumption of adultery if it could be shown that the two people in question had an "adulterous disposition" and had the opportunity to commit adultery. It was not be hard for a couple to collude on the disposition and opportunity rule.
The trouble happened when before the divorce one spouse wanted to back out of the agreement. Then he or she would claim collusion, and use it as a defense. The movie Gay Divorcee starring Fred Astaire and Ginger Rogers humorously depicts a divorce and collusion.
The same basic routine could be applied using other fault grounds --cruelty, desertion, drunkenness.
An adulterous disposition usually means showing romantic involvement or entanglement of some sort. Love letters or public (or even semi-public, as we have seen) displays of affection are considered evidence of an adulterous disposition. The opportunity to commit adultery means showing that the two people in question were alone for a time. Basically, the opportunity to commit adultery means the parties in question had the time and the place.
Condonation is approval of certain behavior. If someone does not object to something, one could be said to have condoned it. For example, if a wife sued her husband for divorce on the grounds that he committed adultery, he could raise the defense that she condoned it, or knew about it and did not object to it. She would be unable to obtain the divorce in that case. As it applies to the divorce, condonation happens when they resume sexual relations after one learns that the other has been unfaithful. A night together for old time’s sake after learning of adultery pulls the legs out from a case based on adultery. Black’s Law Dictionary states that to use condonation in a divorce case means that it "must be free, voluntary, and not induced by duress or fraud... This defense had been abolished in those jurisdictions which recognize ’no-fault’ divorce." Three elements of are essential to condonation: knowledge, forgiveness, and revival. That is, the victim spouse must have knowledge of the grounds for divorce (adultery, for example) and despite this forgive the perpetrator spouse. The "revival" aspect refers to the fact that condonation can be removed, by ceasing to forgive, for example. If this is so, the grounds are said to be revived.
Condonation turns on some element of forgiveness. The court would have to look at the acts and actions of the parties in order to ascertain whether there has been adequate forgiveness. If the couple resumes marital relations, then there could be said to be forgiveness. Some states require the resumption of marital relations, while others say a mere statement of forgiveness is adequate. Forgiveness also must be genuine and not be because of fear or duress.
Sometimes one spouse changes his or her mind about forgiveness, usually when one spouse is repeatedly unfaithful to the other.
This is the revival principle. If the spouse cannot forgive, the grounds are said to be revived, and the defense of condonation is no more. Courts used to require evidence of "conjugal unkindness" as a precedent to invoking the revival principle. As one might imagine, the definition of "conjugal unkindness" was a bit vague.
Connivance, which is sometimes called "voluntary blindness," means a secret plan to achieve an evil or illegal end. Black’s Law Dictionary says, "As constituting defense in divorce action, [connivance] is plaintiff’s corrupt consent, implied or expressed, to an offense charged against the defendant. This defense has been abolished in many states with the enactment of no-fault divorce laws."
Connivance is a secret plan to achieve an evil or illegal end, and as a defense against a charge of adultery works very much like collusion. Let’s say, for example, that a wife wished to get a divorce from her husband. If she invites someone to stay at the couple’s house while she is absent, and that someone seduces the husband into an affair, the husband could later claim that the wife connived – or set him up to commit – adultery in order to get a divorce.
Connivance was used to trick a husband into an affair. Adultery by the husband was a recognized grounds for divorce. If the woman could not get a divorce any other way, she may have been willing to trick her husband into having an affair. It sounds farfetched today, a woman trying to trick her husband into having an affair, but it happened.
Connivance was commonplace enough to put it on the books. Spouses used to go to the expense of hiring private detectives or other agents to seduce the other spouses.
In this routine, connivance and collusion could come together in mixtures limited only by the imagination of a spouse who wanted out of a marriage.
Connivance was not limited to cases of adultery. If one spouse had an alcohol or drug problem, and the other spouse purchased alcohol or drugs for that spouse, the court could find connivance.
Sometimes a husband believes his wife is being unfaithful but prefers not to discover it, this is not connivance. The husband has not taken active steps to allow the wife to commit adultery. He has not aided and abetted her actions, or, as one court put it, he has not "smoothed the path to the adulterous bed." Nor is it connivance when a husband believes his wife is being unfaithful but bides his time as he gathers evidence to prove it. The husband did not take active steps to get his wife to commit adultery. He merely gathered evidence of behavior she had already embarked upon.
Connivance was difficult to prove and so was rarely used in a fault divorce. With the rise of the no-fault system, connivance is for all intents and purposes extinct.
Provocation is behavior that incites a response. For example, if the wife sues the husband for divorce, claiming desertion, the husband could claim as a defense that she provoked his absence or desertion. She would be unable to profit by her bad acts.
Provocation as a defense, like so many other areas of divorce and family law, easily ends in he says-she says. Needless to say, provocation is not an adequate defense to a claim of physical or mental cruelty. There was a time when men viewed their wives as property and beat them. Happily, those days are past. "She was asking for it" will not fly with any judge.
In the case of a husband deserting his wife because of her bad acts or other behavior, this could also be called constructive abandonment. Just as the term implies, it means that the one spouse sets out to create intolerable conditions.
In a darkly comic way, recrimination means, "They deserve each other." Recrimination is the claim by one spouse, who is being sued for divorce on certain grounds, that the other spouse is also guilty of marital misconduct. Thus, the fault by both parties essentially "cancelled out" the other. That is, if both the husband and the wife had affairs, neither of them could claim the fault of the other in order to get a divorce. They were stuck together in the marriage. As you can see, this result was less than satisfactory and really makes very little sense. Very often recrimination takes the form of a counter-charge of adultery or cruelty. Thus, two spouses going to battle stations end up charging each other with the same allegation as part of legal jockeying for position. In the case of adultery, recrimination could also include the naming of a co-respondent.
Recrimination was and is heavily criticized. Basically, it came from the Catholic Church, which holds that marriage is an indissoluble sacrament. After a period of time, many people came to see that forcing a couple to remain together in this sort of situation made very little sense.
Interestingly enough, the idea of recrimination is being revived in some quarters. Some people believe that divorce is too easily gotten these days, and is too prevalent, and so are grasping at anything that would make divorce more difficult to obtain.
Even in cases where a divorce ends in litigation, recrimination enters divorce actions less and less. Whether or not adultery is a factor in the divorce, legal advice should be sought before charging a spouse with adultery. Given the direction of divorce law, usually recrimination is not worth the trouble and it can make litigation, which is painful and expensive, even more so. Before no-fault divorce, recrimination worked as a fault counterclaim defense. Under the doctrine of recrimination, if the conduct of both spouses gives both grounds for divorce, then neither is entitled to relief. Recrimination is a showing, by the defendant, as a bar to the plaintiff’s cause for divorce. In theory, for example, this means that Rufus, the defendant who is accused of adultery by Rhonda, makes a counterclaim that she is also guilty of adultery, then neither of them is entitled to a divorce. As a bar to divorce, "the complainant’s misconduct need not be of equal degree with the defendant but must be of the same general character."
Even if Rufus was seeing Rita and Rhonda had a fling with Ronald, most divorce lawyers advise against recrimination. Recrimination is like throwing gasoline of a fire. In some cases, there may be a tactical advantage, but in the main most divorce lawyers advise against allegations of adultery even when they are true. It is a weapon that makes a lot of noise, but one with which a person can easily shoot himself or herself in the foot.
Recrimination has been abolished as a defense in many states since the enactment of no-fault divorce. Connivance and condonation also have been abolished as a defense in no-fault jurisdictions, because, as notes Black’s Law Dictionary " ... agreements or acts of collusion are no longer necessary."
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