Defense of Justification in Divorce

by Beverly Bird
If you allege fault, your spouse will have the chance to refute the claim.

If you allege fault, your spouse will have the chance to refute the claim.

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Some states no longer recognize fault-based divorces, but others still allow spouses to get a divorce based on fault grounds. In those states, if a spouse makes allegations of fault in her divorce complaint, such as adultery or cruelty, she must prove them to the court's satisfaction. Her spouse has the right to try to deny her allegations. This is called defense of justification, or sometimes an affirmative defense. The accused spouse can essentially offer an excuse for his wrongdoing in an attempt to exonerate himself.

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Connivance is a common defense against adultery grounds. It means that the accusing spouse had some part in the infidelity. For example, the couple might have engaged in a sexual act together with one or more other partners. Alternatively, both partners might have willingly entered into a polygamous relationship. In these cases, one spouse cannot accuse the other of adultery, hoping to gain an edge in the divorce proceedings. Connivance is not a reasonable defense against cruelty, however, because it would require that the accusing spouse somehow contributed to and engaged in her own abuse.


A recrimination defense is similar to a connivance defense in that both spouses are guilty of the act that justifies a divorce. However, recrimination doesn’t require that spouses commit the same act together. In the case of adultery, it means both spouses strayed with separate partners. With cruelty grounds, it means both spouses committed acts of mental or physical abuse against the other. When both spouses are guilty of the same misconduct, neither of them can use it as justification for divorce.


A defense of condonation does not require that the accusing spouse willingly took part in the misconduct or committed a similar act. The accused spouse would only have to prove that his partner forgave him by condoning his behavior. If the wronged spouse continues the marital relationship after discovering that her partner has committed a fault ground, this is condonation. It might be applicable if she learned he committed adultery, but did not file for divorce and use the infidelity as grounds for divorce until years later.


Provocation is a tricky defense and may not win the sympathy of a court. When a spouse raises a defense of provocation, he is claiming that the accusing spouse somehow forced him into committing the act on which she is basing her grounds or justification. For example, he might allege that she refused to engage in marital relations with him, so he had to look elsewhere for companionship. More commonly, a spouse might raise this defense against an accusation of abandonment or desertion, stating that he had to leave his partner because she treated him so badly he could not maintain the marital relationship. This defense is similar to recrimination; it alleges that both spouses are guilty. However, with provocation, both spouses are not necessarily guilty of the same marital misconduct.


In some states, divorcing on fault grounds is faster than using no-fault grounds, which sometimes require that parties live separate and apart for a period of time. In this case, spouses might agree that one of them will file on a fault ground just to get the divorce over with. If the accused spouse then realizes that the ground might mean he has to pay spousal support or will receive less marital property, he might change his mind. He can then tell the court the truth; he agreed to the fault ground to expedite the divorce, but now he wants to deny any wrongdoing. This is a collusion defense.