In our monthly divorce seminars "What Every Women Needs to Kow about Divorce" and in my book "What Every Virginia Woman Should Know about Divorce" Women learn not only the grounds for divorce: adultery, sodomy,buggery, desertion, constructive desertion, cruelty, felony conviction and no fault, but also they learn about affirmative defenses.
Affirmative Defenses are defenses argued to prevent a divorce from occuring or to allow a divorce but not on the facts and allegations presented by the other spouse. Affirmative defenses should be pled in an answer to a divorce pleading.
The five affirmative defenses are:
1.Condonation: when the aggrieved spouse resumes cohabitation after learning of conduct constituting grounds for divorce. A good example would be that you find out that your spouse has committed adultery and you sleep with him after you are aware of his adulterous behavior. You have legally condoned his unfaithful conduct and cannot later allege his prior adultery as a reason for your divorce. If he resumes the affair after you slept with him and you can prove the resumption, then you can pursue the divorce on adultery grounds.
2. Insanity: When the party at fault is insane. In order to be at fault, your husband has to have the mental capacity to understand his actions.
3. Collusion: when the parties make up a false ground for divorce in order to obtain a quicker divorce. With No-Fault divorces you seldom see collusion anymore.
4. Recrimination: when one of the parties commits adultery and the other spouse also has an affair to show the first offending spouse that she can have a paramour as well. In such a case, the court will grant neither of the parties a divorce on the grounds of adultery.
5. Connivance: when one spouse agrees to the marital fault of the other and then alleges the fault as grounds to obtain a divorce. For instance, a wife cannot set up her husband with a prostitute and then file divorce on the ground of adultery because her husband slept with the prostitute. Another example would be to ask your husband to leave the marital home and then claim his desertion of the marriage.
Affirmative Defenses are fairly rare in Virginia Divorces, but being aware of the defenses may be important in your case; and your case is the one that matters !