The same is true in Washington state.
First, IANAL (Yet 
) and I won’t be a divorce lawyer. You are correct. The petitioning party can’t use his OWN adultery, or his OWN wife beating, for fault based divorce.
Next, adultery is pretty easy for the court to accept. You don’t need glossy 8X10s of penetration. I’ve heard of cases where the spouse has had lunch a few times with a member of the opposite sex as being enough (where the judge wants to grant the divorce) and certainly spending significant amount of time with another person would qualify. “Yes, your honor, we spent the night in a hotel room, but all we did was talk” will never be a good defense to adultery.
Plus, the “physical or mental cruel or inhuman treatment” is flexible enough if the judge wants it. In some counties if husband tells wife she has a fat ass that is “mentally cruel.” In other counties with conservative Christian judges, you will wait that whole year for the “no-fault” unless there has been serious physical abuse.
One attorney told me that the only reason fault-based divorce is still on the books is so that religious people can soothe their own consciences by divorcing for a biblical reason.
And the sad part is that it doesn’t matter for the property settlement or child support why the divorce is granted. Your wife could be a street walking whore, or your husband can be a drunk who beats on you daily, but all that does is give you a fault-based reason for divorce, when you could just as easily pick the no-fault one after one year. The property is subject to “equitable distribution” no matter what.
Of course, both of the above would affect fitness for child custody, but there is no functional difference of a no-fault divorce with these allegations to protect the kids and a fault based divorce.
This is not necessarily true. It probably depends on the state, but at least in some states a fault-based divorce means a possible difference in asset division.
This is what I’m interested in. Is anyone aware of any cases where a defendant spouse (who wanted to stay married) was able to establish/prove in court that the plaintiff did not bear their burden of proving that the marriage was not reconcilable or was actually able to not only do that, but establish to the requisite burden of proof that the marriage was reconcilable and that the plaintiff was incorrect in believing that it could not be fixed?
Looking at the definition of “marriage breakdown” in the Canadian Divorce Act, I don’t think it would even be possible to do so.
Section 8 of the Divorce Act reads:
As I read this, as soon as one spouse shows that they’ve lived separate and apart for a year (s. 8(2)(a))) that proves breakdown of the marriage under s. 8(1). It’s not open to the other spouse to try to prove the marriage has not broken down once the year apart is up. (disclaimer: I don’t do family law, so I’m just going by the bare words of the statute.)
That’s not the reason usually given in Canada for the continued “fault” divorce in s. 8(2)(b). The reasoning is that in the cases of adultery or cruelty, the injured spouse should be able to get out of the marriage right away, without having to wait a year. For instance, if a woman is being beaten by her husband, she should be able to start divorce proceedings right away.
Maybe this is a little obvious, but it would seem there is a defense against no-fault divorce in most states: you argue that you’re still living together as man and wife.
There are some situations where people seek “divorces of convenience” where the relationship might not have necessarily broken down, but there are legal or financial reasons why a couple might not want to remain married. For example, I know a couple who had to do this because the wife had an expensive medical condition and wasn’t eligible for some sort of government medical coverage because she was technically covered by the (incredibly shitty) insurance her husband’s workplace provided. If the husband hadn’t been on board with the scheme, I presume he could have tried to prove that they were, in fact, still living as man and wife and blocked the divorce.
I don’t remember the exact details, but I think there was a similar sort of situation with Dennis Hopper right before he died. While he was sick, he filed for divorce from his (4th?) wife to prevent her from inheriting, even though they were still living together and their relationship up to that point had (allegedly) been fine. She fought the divorce on the grounds that they were still living together as a couple (although later she also argued that he wasn’t competent and his kids were manipulating him). IIRC, he eventually did kick her out, but he died before the divorce actually went through so she did end up getting at least some of the estate.
Right, but “equitable” does not mean “equal,” it means fair. Maybe in some minor peripheral matters these things could determine what is fair or unfair, but the common perception that if one party can prove adultery that it will mean that he/she gets everything is the stuff for movies.
If you beat your wife and she had to live in a hotel for a month before she could get on her feet, then it is certainly fair to offset the marital assets to compensate her for that. However, the distribution will not be punitive like many think. The court won’t punish a person for being a lying, cheating bastard by giving the aggrieved spouse more than to make him/her whole.
I don’t know of any cases that you describe, but I can’t imagine the consequences to such a ruling. Wouldn’t it swallow the whole no-fault rule?
If the petitioner truly does not want to work it out, isn’t that per se evidence that it IS in fact broken? Don’t all counselors say that agreements can only be reached if both parties truly want it to work? Could a court actually order the petitioner to try to make it work and order him to WANT to make it work?
What if he tells the judge he doesn’t want to make it work? Could we jail him for contempt until he decides he wants his wife again?
And what does “fix[ing]” the marriage mean? Surely, if the state imprisoned those two people in their homes, they would eventually be able to suffer it out. Does fixing mean happiness? Are we prepared to do some 1984-type brainwashing to make him think that he really, really is happy?
I know that this is hyperbole, but I can’t imagine a successful argument that there could be a happy, functional marriage when one party simply doesn’t want that.