In some states, the defendant spouse in a fault-based divorce proceeding may raise certain defenses. Back when fault-based divorces were essentially the only option, defenses were more readily available. Now, most states have removed such defenses from the books or limited them to a very set list available only under specific circumstances. The most common defenses still available in some jurisdictions include the following.
1. Condonation: An adultery action can be defeated by raising a claim that the spouse filing for divorce “condoned” the adultery—that is, the filing spouse forgave the offending spouse for his/her adulterous actions and they continued to live together after the adultery came to light.
2. Recrimination: An adultery action can also be defeated by raising a claim that the spouse filing for divorce has also committed adultery.
3. Procurement: The defendant in a fault-based divorce proceeding may claim his/her spouse caused the offense (for example, by entrapment).
4. Provocation: The defendant in a fault-based divorce proceeding may also claim his/her spouse provoked the offense.
5. Justification: The defendant in a fault-based divorce proceeding may raise a justification claim for the alleged fault, such as that abandonment was necessary due to cruelty.
Related: Grounds for fault-based divorces
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