Spouse File for Divorce

When Can a Spouse File for Divorce

Where the court is satisfied on any of the following 3 grounds a divorce may be granted:

1.  the parties have lived separate and apart for at least one year and there is no reasonable prospect that they will resume cohabitation;

2.  one or both parties have committed adultery;

3.  one party has treated the other party so cruelly as to make continued cohabitation impossible.

Most spouses file for divorce under the first ground because under the other 2 grounds one party must admit in court that he or she committed adultery or acted cruelly; otherwise, the allegation must be proven at trial.  Given the costs, and length of time it would take to prove these allegations at trial most people will opt for the first ground.  

In addition to having a ground for divorce the spouses must meet 4 other requirements:

1.  there must be adequate provisions in place for the financial support of any children of the marriage;

2.  all the religious barriers to remarriage that are within the spouse's control  must be removed;

3.  one spouse or the other must not be unfairly prejudiced by the fact footed divorce;

4.  the parties must be getting divorced for legitimate reasons and not obtaining the divorce to perpetrate a fraud.

To demonstrate to the judge that the child support payments are adequate they must meet the child support guidelines and an affidavit must be provided to support that the divorce is not intended to perpetuate a fraud.

The judge may be reluctant to grant a divorce in circumstances where one spouse relies on the other spouse's medical benefits, for example, if that spouse is suffering from an illness and cannot find an adequate supplement for additional coverage.  

Divorces can be granted in chambers and there is a 31 day wait period before a divorce takes effect and the spouses can remarry.