Question: My husband and I have lived in nine states during his corporate career over the past 32 years. Two years ago, we retired to a state with a nice coast, and we have been relatively comfortable with his retirements, my pension, and our assets. But, unfortunately, too much of him around the house has been devastating to our marriage. He has become a couch potato, has gained nearly 50 pounds in the past year, and refuses to do anything but eat, sleep, and watch television. He leaves the house in a mess, and does not bathe for days at a time.

While I am hardly a party girl at 59, I have worked, taken care of the house, and raised the children for the majority of my adult life, and am not content sitting at home and watching the grass grow and watching him vegetate. I went to a lawyer who advised me that since we had moved to a “fault” state, my husband’s behavior would not afford me a ground for divorce, that there was no such thing as “irreconcilable differences,” and, that if I wanted to get divorced, he and I would have to separate for at least a year. When I asked how I was to support myself separately for that year, the lawyer told me that he didn’t think my husband’s conduct rose to the level of even being a ground for separation.

I was shocked because I had read in a book touted to be definitive on divorce that all states had enacted no-fault divorce laws. Can I go back to another state and get divorced? Or am I a prisoner in this relationship in a backward state?

Answer: While the words “no fault" may be cavalierly used to describe divorces where one spouse does not have to prove the other spouse did something described by that state’s legislature as being “a legal wrong,” as you have learned, not all states subscribe to the “no-fault” theory allowing folks to get divorced.
To obtain a “no-fault” divorce in a state that recognizes them, one spouse must file and serve a complaint asserting a basis recognized by his or her state of residence. The most popular “no-fault” grounds include “irreconcilable differences”, “irretrievable breakdown”, and "incompatibility."

However, those who write legal treatises about getting divorced while living separately and apart for a period of months or even years before one is eligible to get a divorce often confuse the public, because that type of divorce is, in fact, based on the length of the separation, not on “no fault.” Obviously, you and your husband live in one of these states.

The problem you face is that if you leave your husband without justifiable cause or excuse – which is generally a ground for divorce -- you may be charged with desertion. And while you may go to court to try to get a legal separation so that you can support yourself during the period of separation prior to getting divorce, convincing a judge of your husband’s “fault” to allow you to get support in the meanwhile may be difficult.

And, when it comes to getting a final division of assets and possibly alimony, in many states, fault is an issue that can affect the award.

Bottom Line: You can’t sue your husband for divorce in a state in which he doesn’t live, because no jurisdiction will exist to bind him. You may not have grounds to leave your husband and get enough support to maintain yourself. And if you make the wrong decision, you may live out the rest of your life wishing you had not made it. We suggest that you try counseling to resolve your marital differences. Or, try to talk your husband into moving to a true no-fault state.