Every state has its own laws and processes for determining when and under what circumstances a marriage ends.
In some states, either spouse who is dissatisfied with the marriage can give the boot to the other by filing a no-fault petition. A no-fault divorce is one in which neither spouse blames the other for the breakdown of the marriage. No proof of wrongdoing (i.e., adultery or desertion) shall be necessary. People often include the following terms when describing no-fault divorces: 1) an irretrievable breakdown; 2) irreconcilable differences; 3) incompatibility; and/or 4) a conflict of personalities. Either spouse may at any time file for a no-fault divorce. If yours is a no-fault state, the legal process is simple and clear-cut. Just fill out a couple of forms, take the forms to the court clerk, pay the required filing fee, and have court-certified copies delivered to your soon-to-be ex. (Private process servers are a best-bet, and can be found in the phonebook.) If your spouse does not contest the filed request for divorce, the proceedings will move along fairly quickly, ending with a court-approved divorce agreement.
Other states, however, have laws on the books that permit a divorce only if there is a good reason for the breakup, often referred to as the grounds for divorce. In other words, the divorce is one spouse's "fault". This means accusing a spouse of adultery, physical or mental cruelty, sodomy, desertion, alcohol or drug abuse, insanity, cruel and inhuman treatment, impotence, or infecting the other spouse with a venereal disease. Fault-based behavior, in some states, may be relevant to and impact child custody, alimony and the division of a couple's marital property.
Fault grounds may be contested. The party accusing the other spouse must prove the allegations. As in any civil trial, the opposing spouse can rebut the allegations. Unlike no-fault states, a time limitation exists for filing a divorce based on fault grounds. For example, if you discover that your spouse cheated on you, you have a set time-period within which to bring a divorce action based on the ground of adultery. Since proving such grounds of divorce can be burdensome and time consuming, such actions can get messy and expensive to litigate.
To further complicate divorce law and practice, some states allow termination of marital status on both a basis of fault and alternatively on the basis of no-fault (e.g., incompatibility and irretrievable breakdown).
Whether yours is a no-fault or a fault state, the divorce can be contested. A spouse who wants to duke it out can make the process more difficult, more costly, and soul-suckingly time-consuming. If it is a contentious marriage, be prepared for a contentious divorce.
In any divorce, the plaintiff is the spouse who first properly files the necessary documents to institute the proceeding. The defendant is the recipient, by service of process, of those necessary documents.
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