Recently on our legal forum a user asked, “I found out my husband is cheating on me, and I am going to file for divorce. My state will allow me to file on the grounds of irreconcilable differences. I am wondering what that means and whether or not I should file a no fault divorce or a fault divorce with the stated reason of adultery?”
What are irreconcilable differences and what does it mean for my divorce?
Irreconcilable differences, also referred to in some states as an irretrievable breakdown of the marriage, is defined as the inability of the divorcing couple to save their marriage.
Irreconcilable differences is just one of several reasons or “grounds” which a couple can list as the reason they are filing for divorce. Irreconcilable differences is considered a “no-fault” ground for divorce, which means that neither the husband or wife committed any actions (i.e., adultery or desertion) which contributed to the breakdown of the marriage.
It’s important to note that state laws vary, and the grounds or reasons in which couples can list on their divorce petition can vary by state law. In fact, some states only allow no-fault grounds for divorce while other states allow both fault and no fault grounds.
All states, however, now allow for no-fault divorce. California first passed the law allowing no-fault divorce in 1970 and New York, which was the last state to sign no-fault divorce into law, recognized no-fault divorce in 2010.
What grounds should you choose for your divorce?
Many couples choose to file for divorce on the grounds of irreconcilable differences because it does not require that accusations of wrongdoing are made or that proof of wrongdoing is provided to the court.
Before making your decision, however, you will have to consider not only the reasons listed above, but also how expeditiously you want the divorce completed, whether or not your spouse is willing to agree to the grounds, and whether or not you have evidence of your spouse’s wrongdoing.
For example, if your spouse has had a lengthy affair and you can produce emails or photographs, proving adultery may be easy. If, however, it was a onetime fling and there is no evidence, it may be simpler to file for divorce on other grounds.
Will the adultery affect alimony or spousal support payments?
Another consideration before choosing grounds for divorce is whether filing on the grounds of adultery is likely to affect your spousal support payments. Here again, you will need to review the laws of your state.
Marital fault, though considered less and less important with regards to spousal support payments, may, under very limited conditions, affect payments. For example, the Kansas Court of Appeals recently noted that “fault is not to be considered in determining the financial aspects of the [divorce] unless the conduct is so gross and extreme that the failure to penalize therefore would, itself, be inequitable.” In re the Marriage of Vandenberg, 43 Kan. App. 2d 697, 712 (Kan. Ct. App. 2010).
With that said, fault is generally not considered, and instead, the court will review the need of the receiving spouse and the paying spouse’s ability to pay.
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