This chapter, probably more than any other, deals with general statements of law.

Do not rely upon anything in this chapter as the basis for any action or inaction without first talking with your lawyer.

Adultery must be proven by clear, cogent, and convincing evidence while a preponderance of the evidence will prove the remaining grounds for divorce. These are technical terms meaning that the law requires more proof to establish adultery than to prove other grounds for divorce.

Generally, another witness or physical evidence must corroborate the proof of the grounds of divorce. Some judges do not recognize physical evidence as corroborative and require a second witness to corroborate your testimony. A corroborating witness will frequently testify that he heard the wrongdoer admit committing the act that is the basis for the divorce.

Common defenses to any "fault" ground for divorce include condonation, recrimination, and collusion. Condonation means the innocent party forgave or condoned the act. Condonation occurs when parties continue to live together after marital misconduct by one party, when parties reconcile after a separation, or when the parties engage in sexual intercourse. Recrimination is an act of marital misconduct by the other party enough by itself as a ground for divorce. If both parties are at fault, then neither base a divorce based on fault. Collusion is the term used when two persons intentionally conspire to get a divorce on grounds that do not exist. If a family court judge finds collusion, then the parties and their lawyers are in deep trouble.

One rarely proves adultery by direct eyewitness testimony. Most adultery is committed in private away from the eyes of others. Therefore, most adultery is proved by circumstantial evidence. The circumstances to prove adultery are opportunity and inclination: an inclination to commit adultery and the opportunity to commit adultery. The real test is whether the judge believes that the person committed adultery. Family court judges were not born yesterday and they are quick to believe that adultery was committed if two persons romantically attracted to each other are alone in a motel room, a home, or a parked automobile. Photographs of the persons together make good corroborative evidence. The most common defenses to adultery are that adultery did not occur, there is an innocent explanation, or that the proof is insufficient.

Physical cruelty means actual personal violence or such a course of physical conduct as endangers the spouse's life or health. A single slap generally cannot prove physical cruelty. Photographs of injuries, doctor's testimony, or persons who saw the event or the injuries make good corroborating evidence. Common defenses to suits for physical cruelty are selfdefense or accident.

Habitual drunkenness is the fixed habit of frequently getting drunk but it does not require continual drunkenness. It is necessary to prove that the use or abuse of alcohol or narcotic drugs caused the breakdown of normal marital relations. Corroborating evidence is usually the testimony of a witness who frequently saw the spouse under the influence, or police records that show convictions for alcohol related offenses. Common defenses to habitual drunkenness are that the habitual drunkenness existed before the marriage, the person continued to work regularly, there were no ill effects from drinking, or the parties drank together and the complaining party encouraged the drinking.



Proving desertion requires evidence that the parties ceased living together, the deserting party does not intend to return, the deserted party did not consent, the desertion was not justified, and the desertion continued for at least one full year. Common defenses to desertion are the complaining spouse approved the leaving or that the parties lived together or engaged in sexual intercourse during the past year. Desertion has become less common as a ground for divorce since the legislature made a one year separation a ground for a no fault divorce.

My experience is too many lawyers and litigants spend too much time trying to prove how bad the opposing party is and not enough time showing what a cooperative and positive attitude the client has.