What Are Grounds for Divorce? Legal Insights Explained
Do I need grounds for a divorce? This is another way of saying do the courts need you to show a reason for the divorce. It’s logical to ask this question because a divorce is a lawsuit and you typically need a reason to sue someone. The short answer is not really. The courts do not need you to prove a ground for divorce.
There is really only one requirement to get a divorce in Nevada. You must be a physical resident of Nevada. The court will ask you to provide a ground for divorce, but they are not going to deny the divorce because of the reason. Most divorce documents simply state you and your spouse are incompatible. Which is typically written on the divorce documents as “irreconcilable differences.” You don’t need to provide more detail than that, and you don’t even need to prove the statement is true. Let me explain.
Nevada is a “no-fault” state for divorce. First, no-fault means you don’t need to prove your spouse has done something wrong to cause the divorce. It wasn’t long ago, maybe 50 or 60 years ago, there were only a few accepted reasons to grant a divorce, and you were required to prove that your spouse had caused the marriage to be over. For example, you needed to prove adultery, or prove mental illness to be granted a divorce. Second, no-fault means even if your spouse did do something wrong to cause the divorce, he or she would not be punished for it. The most that can happen is the divorce is granted.
The fault or the ground for divorce is legally referred to as “grounds.” The court, in the past, would ask what are your grounds for asking for a divorce. That is no longer the case.
What Are the Grounds for Divorce?
For a long time in most states, including Nevada, you could not obtain a divorce unless you could prove that your spouse was “at fault.” That meant, that to get a divorce, you had to prove to the court that your spouse committed an act that the law said was egregious enough to terminate your marriage. Those acts were called “fault grounds” for divorce.
Then came NRS 125.010, which did away with grounds and had to prove them. This law turned Nevada into a “no-fault” state for divorce. A spouse only needed to claim “incompatibility” as the ground for divorce. And the court accepts your word. They will not force you to prove you are incompatible.
Nevada was one of the first to become a no-fault divorce state for tourism reasons. Divorce sparked tourism for Nevada. Couples from all over would travel to Las Vegas to file a no-fault divorce because their state-required proof of fault. Today, all 50 states are no-fault.
What Are Fault Divorce Grounds?
Historically, many states provided only three fault divorce grounds. Typically, these were:
- Abuse;
- Abandonment;
- Adultery.
For a time, Nevada included additional fault grounds of divorce, such as:
- Impotency at the time of the marriage;
- Willful desertion for two years;
- Conviction of a felony or infamous crime;
- Habitual drunkenness;
- Neglect.
In 1931, Nevada included two new grounds as justifications for obtaining a divorce. These were:
- Insanity existing for two (2) years;
- Living separate and apart for three consecutive years without cohabitation (the current requirement is now one (1) year).
Even though Nevada offered more reasons to get a divorce, Nevada still required a showing of fault, which is often very difficult to prove. Think of the burden of proving your spouse “Neglected” you or is “Habitually Drunk.” Additionally, couples who wanted to get a divorce but who had not neglected each other, cheated on each other or lived separate and apart for the required time, were unable to get a divorce. They were forced to continue with an unhappy and dysfunctional marriage because they could not establish grounds.
As a result, many spouses who wanted to get a divorce would fabricate fault to obtain a divorce. For example, spouses might agree to testify falsely that one spouse caught the other cheating, so as to establish the ground of adultery. In fact, describing the prevalence of collusion between spouses he saw in his courtroom, one judge testifying before a matrimonial committee stated: “Their testimony about adultery is always the same. The wife was in a sheer pink robe when caught. It’s never blue—always pink. Or the husband in always in his shorts when she caught him.” The stories were so similar the judge knew the testimony was not true.
Because of this type of manipulation of testimony, the lawmakers started making changes. Fault-ground system in many states, “no-fault” grounds started to be included as legal grounds for divorce. In 1967, Nevada became one of the first states to adopt “no-fault” grounds for divorce.
What Are No-Fault Divorce Grounds?
As the term suggests, “no-fault” grounds for divorce are reasons the state allows a couple to obtain a divorce without having to prove that either party committed any particular behavior that caused the breakdown of the marriage. In 1967, Nevada has adopted the no-fault ground of “incompatibility”. Other no-fault states may refer to this concept as “irreconcilable differences” or “irretrievable breakdown.” All of these terms simply mean that neither party did anything to cause the breakdown of the marriage. Rather, the parties simply no longer wish to be married and want to obtain a divorce as soon as possible.
Once the no-fault ground of incompatibility became available, there was little need for parties to raise any of the other grounds. Today, the only remaining most common grounds for divorce in Nevada are:
- Insanity existing for two years;
- Living separate and apart for one (1) year;
- Incompatibility.
Thus, Nevada is considered a “no-fault” state with respect to divorce because, with the introduction of incompatibility as a no-fault ground, there was no longer any need for parties to have to prove the insanity of the other spouse or to live separate and apart for one year to obtain a divorce. Now, to obtain a no-fault divorce in Nevada, a party may simply show that the marriage is no longer workable and that the parties hold out no hope of reconciliation.
If I Show Fault Will I Get More Assets?
No, not typically. How the court will divide your community property, or your community debts is not affected by fault. If couples cannot agree on how to divide their assets or debts a judge will divide them. Judges are controlled by NRS 125.150 to divide the community property equally absent a compelling reason. You might think an affair, or a spouse being abusive is a compelling reason. It is not.
Now, a spouse spending money on an affair. Or a spouse physically harming you and causing you medical bills might not be fault, but it could be a marital waste. Marital waste is sort of like fault. Marital waste is when one spouse has caused the community financial harm. Some judges call it financial misconduct. Proving your spouse caused marital waste could get you more of the assets.
Also, showing fault will not get you more child support, or alimony. Those areas of divorce are also covered by the general rule of “no-fault”. Proving your spouse is at fault for the divorce does not lead to more child support or more alimony. The only real way fault sneaks into a divorce is through marital waste or through behavior that could be harmful to children.
If I Show Fault Will I Get Custody of the Children?
Showing a spouse caused the divorce does not automatically lead to getting custody of the child. For example, showing the court your spouse doesn’t help around the house, stays out late at night will not necessarily lead to you getting custody of the children. However, fault can show some type of harmful behavior. If the behavior is the type that could affect raising children, you could use their behavior as a reason to be granted more custody time with the children. For example, physical abuse, even if true, would not get your more assets. However, physical abuse could lead you getting primary custody of the children.
Nevada judges look at Best Interest Factors when deciding the best custody time for each parent. A personality trait like being physically abusive, being drunk all the time, or not able to stay employed could be a factor that leads to you getting more custody time.
What Is a Nevada Default Divorce?
Nevada law also allows for a default divorce. Which is often confuse with fault. Clients get “no-fault divorce” and “default divorce” mixed up. However, a default divorce has nothing to do with fault, not fault, or grounds for a divorce.
A default divorce simply means that one spouse has properly notified the other spouse about the divorce. This requires serving the spouse with the divorce documents. The other spouse then fails to timely file an answer or respond to the divorce filing. With no opposition being filed, the court grants a final divorce by default. Called a default divorce.
Do I Need Grounds for an Annulment?
Yes, annulments need grounds. Many people equate a divorce with an annulment. In fact, a divorce and an annulment are two different ways by which a marriage may be terminated. However the process and outcome are much different than a divorce. In a divorce, you only need to show incompatibility. Where in an annulment, you must state and prove a reason for the marriage to be annulled.
Both a divorce and an annulment terminate a valid marriage. A party may request an annulment in the same way they would file for divorce. The difference is that if a divorce is granted, the marriage is terminated as of the date of the granting of the divorce. Whereas, if an annulment is granted, the marriage is terminated as of the date the court declares the marriage to be null. Which usually goes back to the marriage date. An annulment treats the marriage as if it never existed.
What Are Nevada’s Grounds for an Annulment?
Unlike divorce where you can simply state irreconcilable differences, an annulment requires a valid reason. You must satisfy grounds for an annulment. Before we get into the grounds for annulment, let me explain the two types of annulments. You have “void” or “voidable.”
What Is a Void Marriage?
A “void” marriage is one that is treated as never coming into existence because it is prohibited by law. In Nevada, void marriage that are prohibited by law are ones that involve:
- Incest (spouses who are related too closely in consanguinity or degrees of blood);
- Bigamy (either spouse already has an existing spouse who is then living).
Some states also void marriages involving radical underage, in which one spouse is significantly under the minimum age requirement to enter into a valid marriage. Because these marriages are prohibited by law, they are void and do not require an annulment to invalidate them. Although, it is still best practice to file an annulment and place the facts before the judge. Otherwise, you have a marriage license that shows a marriage, but no court order that shows the marriage was voided.
What Is a Voidable Marriage?
Marriages that come into existence but require an annulment to be voided are “voidable” marriages. Voidable marriages are “able” to be “voided” because, even though they legally exist, they are invalidly formed based on specific grounds defined by the state. NRS 125.300 explains what constitutes a voidable marriage. When a court announces a voidable marriage, it treats the marriage as void from the date the court declares it to be nulled.
What Are Nevada’s Grounds to Annul a Voidable Marriage?
Nevada includes four grounds for a court to annul a voidable marriage:
- Lack of consent;
- Lack of understanding;
- Fraud;
- Grounds for a void contract in equity.
Lack of Consent
Nevada law requires that for a minor who is seventeen (17) years of age to marry, he or she must obtain the consent of:
- Either parent;
- A legal guardian;
- The court.
If the minor enters into a marriage without obtaining the proper consent, the court may void the marriage. To annul a marriage for lack of consent, the annulment may be sought by the minor who failed to obtain the proper consent, unless the minor reaches age eighteen (18) and cohabits with the spouse as a married couple. The minor must seek the annulment within one (1) year after he or she reaches age eighteen (18).
Want of Understanding
Nevada provides for a court to be able to void a marriage when one of the parties entered into the marriage without the capacity to assent to it. This could occur because the person is of unsound mind or perhaps is too intoxicated at the time of the marriage to be unable to understand the nature and consequence of what they are doing. However, if an insane person enters into a marriage with a lack of understanding but subsequently regains their mental capacity, he or she may ratify the marriage by freely cohabiting with the spouse as a married couple after they regain their reason and are of sound mind.
Fraud
If one party consents to enter into a marriage on the basis of a false misrepresentation of facts or fraud, the court may void the marriage. This might occur, for example, if a person consents to marry because the other spouse falsely agrees to have children, to practice a certain religion, or to live a certain lifestyle such that, if the spouse had known the truth, they would not have consented to marry. This may constitute fraud sufficient to annul a voidable marriage.
Likewise, however, the defrauded spouse may ratify the marriage by voluntarily cohabiting with the spouse as a married couple after he or she learns of the fraud committed against them by the other spouse. In a sense, the defrauded spouse may waive their right to annul the marriage by consenting to the marriage after knowing of the fraud.
Marriage Void in Equity
In addition, the court may annul a marriage for any reason sufficient to annul or declare void a contract in a court of equity. This may include common grounds for invalidating a contract, such as individual or mutual mistake.
If you are married and want a divorce in Nevada, you will not need to show fault. You simply state you and your spouse and no longer compatible. If you want an annulment, you will need to prove whether the marriage is void or voidable. Whether you are seeking a no-fault divorce, annulment, or default divorce, Right Divorce Lawyers can help.
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