Cruel and inhuman treatment can involve either physical
or mental cruelty. To be a reason for divorce, the
treatment must have such a serious effect on the physical
or mental health of the divorce-seeking spouse, that it is
not safe or proper for the parties to continue to live
together. Incompatibility between husband and wife is not
a ground for a divorce. Some examples of acts that Courts
have held to be cruel and inhuman treatment for divorce
purposes include physical attacks upon a spouse; constant
screaming, profanity or other verbal abuse; staying away
from the house too often without an explanation; publicly
flaunting a relationship with another man or woman; and
wrongfully accusing the other spouse of adulterous
relations with another man or woman. Intentional refusal
by a spouse to have sexual relations may be considered
cruel and inhuman treatment where it actually has a
physical effect upon you. Alcoholism or drug addiction, or
substance abuse by itself, usually is not a sufficient
basis for divorce, unless your spouse becomes violent or
abusive when under the influence so that you fear for your
health and safety. Mental illness alone is not a
sufficient basis for a divorce on the grounds of cruel and
inhuman treatment, unless a spouse's other behavior could
be defined as "cruel and inhuman treatment."
Each case, however, stands on its own facts. The Court
decides whether not these facts justify a dissolution of
the marriage. The acts or conduct on which the cruel and
inhuman treatment is based must have occurred within five
years prior to the commencement of the action to be
considered by the Court, unless it is part of a continuous
course of conduct. There are no defenses to cruelty. For
example, mental illness, justification or forgiveness is
not a defense.
Bringing an action on the ground of adultery, is not a
simple matter. You are not permitted to testify against
your spouse, and you must have a witness ready to convince
the Court that your mate did engage in sexual relations or
sodomy with another person. Adultery is usually proven by
circumstantial evidence, that is, by showing that your
spouse had the opportunity, inclination and intent to
engage in sexual relations with the other person.
There are four defenses to the charge of adultery, and
if any of theseare proven by your spouse, the Court will
deny the divorce:
1. "Procurement" or "Connivance" - "Procurement" means
that you actively encouraged your spouse to commit
adultery. "Connivance" is similar to "collusion" or
"consent" by a spouse to the adultery.
2. "Condonation" or "Forgiveness" - Having sexual
relations with your spouse after your discovery of his or
her adultery will be a defense to your divorce action
based on adultery if you intended to forgive your spouse
when you had the sexual relations.
3. "Statute of Limitations" - This means that there is
a time limit (five years from your discovery of the first
act of adultery) for you to bring the divorce action.
4. "Recrimination" - This defense means that you too,
were guilty of adultery. No matter how convinced the Court
is that adultery was committed by both parties, it is
forbidden from granting a divorce on the grounds of
adultery. Thus, if each spouse proves the adultery of the
other, neither can obtain a divorce against the other on
that ground.
Living Apart and Separation
Living apart, without a written separation agreement,
or a Court judgment of separation, is not a ground for a
divorce. There are only two valid ways to dissolve a
marriage if you are separated. Each requires separation of
one or more years. You and your spouse must live apart
after signing a written contract of separation, or under a
Court judgment of separation.
Separation Agreement
A Separation Agreement is a detailed contract which
should be prepared by attorneys, where the parties agree
to live separate for the rest of their lives. It should
set forth the respective rights and duties of husband and
wife with respect to the custody of children, visitation
rights, support payments, distribution of property, and
all other matters pertaining to the marital relationship.
Certain vital formalities must be carefully followed,
or the written agreement will not qualify as a ground for
divorce. It must be signed and acknowledged.
The agreement, or a memorandum of separation, must be
filed with the Clerk of the County where either spouse
lives before an action for divorce may be brought. At the
end of one year from the date of the agreement, either
spouse may sue the other for a "no fault" divorce.
It must be proven to the Court that the agreement was
properly signed and acknowledged and was properly filed;
that the spouses lived apart during the period of the
agreement up to the time of the divorce action; and that
the Plaintiff "substantially complied" with the terms of
the separation agreement.
Separation Judgment
Another form of separation is through a Judgment of
Separation granted by the Supreme Court. This judgment is
based on the same four "fault" grounds as for divorce.
However, the abandonment may be for less than one year. In
addition, "non-support" is a ground for a judgment of
separation, although not for a judgment of divorce.
One year after the filing of the Court's judgment of
separation, either party may sue for a "no-fault" divorce,
based upon one year of living apart. A divorce does not
occur automatically after a year. Court action must be
taken.
