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Defenses in Fault-based Divorce: Mental Illness

Divorce statutes in most states consider several defenses in case of fault-based divorce, such as recrimination, condonation, reconciliation, collusion, and connivance. States traditionally have allowed mental illness as a common law affirmative defense in fault-based divorce actions, particularly against charges of adultery, cruelty, and desertion. Under a typical scenario, the defendant was required to plead the defense and prove that mental illness prevented the defendant from recognizing that the offending act was wrong. In states that allow fault-based divorce and that have detailed statutory schemes governing divorce actions, the general movement has been to limit or eliminate common law divorce defenses such as mental illness.

Fault-based Divorce: Bigamy

Bigamy is a criminal offense. It is the act of entering into a second marriage willfully and knowingly during the existence of the valid bond of a first marriage. Some states consider bigamy as a ground for fault-based divorce.

Children as Witnesses in Divorce Proceedings

In recent years, children have increasingly been called upon to be witnesses in their parents' divorce proceedings. In some contested fault-based divorces, children have supplied testimony as to cruelty or adultery by one of the spouses. In other instances, children have been a part of custody matters, including offering testimony as to being poorly supervised by one of their parents and as to any neglectful conditions in the family home.

Defenses in Fault-based Divorce: Condonation and Reconciliation

States traditionally have considered condonation and reconciliation to be common law affirmative defenses to fault-based divorce actions. Under that scenario, the defendant was required to plead and prove the defense. In states that allow fault-based divorce and that have comprehensive divorce statutes, the general movement has been to limit or eliminate common law divorce defenses such as condonation and reconciliation.

Grounds for Annulment: Underage

In the United States, all but one state require that a person must attain the age of 18 years in order to marry without parental permission. Nebraska sets that age at 19. Some states allow marriage below the minimum age, with court approval, in cases of pregnancy or the birth of an illegitimate child. Although a marriage of underage parties might be void, it can be validated by parental consent in some states.

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