How to File for Divorce After You Forgive Adultery

By Beverly Bird

Fault-based divorce grounds can present a minefield of legal rules that may be difficult to navigate. Adultery is a fault-based ground, but if you forgive or condone it, some states will no longer allow you to use it as the basis for your divorce. This doesn't mean you have to stay married, however.

Fault-based divorce grounds can present a minefield of legal rules that may be difficult to navigate. Adultery is a fault-based ground, but if you forgive or condone it, some states will no longer allow you to use it as the basis for your divorce. This doesn't mean you have to stay married, however.

An Affirmative Defense

If you file for divorce on grounds of adultery, your spouse is entitled to raise something called an affirmative defense if you forgave him for his behavior. He doesn't have to deny that he did anything wrong; instead, he can argue to the court that you should not be able to use his wrongdoing as grounds. Your forgiveness gives him an affirmative defense called condonation. You can't revoke your forgiveness, or take it back.

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An Exception

Condonation involves the logical assumption that your forgiveness is conditional upon your spouse not committing the same wrongdoing twice. If he commits adultery a second time after you forgave him, you can file on adultery grounds – provided you don't forgive him again.

No-Fault Grounds

You don't have to worry about issues of condonation if you file for divorce on no-fault grounds. All states now offer this option, so it's not necessary to cast blame in order for the court to grant you a divorce. In some states, such as New York, you can cite irreconcilable differences. In others, such as Maryland, you can file after a 12-month separation. In either case, your spouse can’t file an affirmative defense to no-fault divorce.

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References

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Can a Divorce Be Denied?

Depending on your state’s laws, the state court can decline to grant your divorce, but it won’t deny a divorce simply because one spouse does not want it. To avoid denial, you must ensure that you fully comply with all of your court’s rules, and you must provide sufficient proof of whatever ground you are alleging in your divorce paperwork.

Defense of Justification in Divorce

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.

Tennessee Divorce Laws on Adultery

You don’t have to prove marital misconduct to receive a divorce in Tennessee; the state offers the no-fault ground of irreconcilable differences. However, its statutes require that you and your spouse live apart for two years before you qualify for a no-fault divorce. Fault grounds don’t share the same restriction, which can make them an attractive option if your spouse has done something to end the marriage, such as committing adultery.

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