Does It Matter Who’s “At Fault” in a Divorce?

So many clients walk into my office fuming at their for cheating, lying, stealing, or a laundry list of other unsavory activities. They aren't always interested in a fair divorce settlement; they want their ex to pay for what they've had to put up with. They want their ex to be at fault for their actions. I get it. But I also want to be realistic and not drive up (more) conflict when it's not going to do anything other than increase fees. So we have to be realistic and strategic. In some states, bad behavior matters. In some states, it doesn't. Allow me to explain:

What is "fault" in divorce?

Fault is the grounds for divorce. It's a way of saying that one party in the marriage "ruined" the marriage. Some states are fault states, accepting any number of actions as the reason a marriage ended: adultery, desertion, incarceration, substance abuse, and a number of other reasons that make it okay in that state for you to immediately divorce your spouse, with no waiting period.

No-fault states typically require a period of legal separation prior to a couple being legally able to file for divorce. Neither party is required to "prove" that their ex did something wrong or bad; a no-fault divorce just means you and/or your ex want to end the marriage. No-fault divorces are where you see terms like "irreconcilable differences" or "breakdown of marriage" listed as the reason for the divorce.

Fault sounds great. I'd love to divorce my ex because of their bad behavior!

So many people say that. But here's the truth: Fault isn't really relevant in most states. And honestly, we don't want it to be because the last thing we all need to do is parade our dirty laundry out in the open in a public court.

Most pleadings in most places can be accessed by the public: family, employers, and others you may not want poking around your business. Oh, and if you think you're fault-less, think again: investigators and lawyers can always find a way to manipulate the most innocent of activities. Fault doesn't really have a place in settlement negotiations or in court, except in very limited circumstances. In other words, it's hard to get evidence into court to demonstrate fault unless it applies to a particular issue that is before the court.

For example: Let's say your ex left you and your young children to run off and party with his new girlfriend. In court, that may relate to the issue of child custody. Or, let's say your ex secretly spent money on an affair. In court, that relates to property – your joint assets – so you may be able to get reimbursed for some of that spending.

Fault usually comes up and can be brought into negotiations in a few contexts: breach of spousal fiduciary duty (they gambled away your joint retirement without you knowing); child custody (doing drugs while parenting); and support payments (intentionally lowering their income in order to pay you less).

Is my ex at fault in divorce if they cheated on me?

In a no-fault divorce state, finding out that your spouse had an extramarital affair is probably not going to help your case in a really big way. In other words, it's not going to be something where you get handed $10,000 or $100,000 for your spouse's bad behavior.

However, there are ways in which finding out that your spouse cheated on you during the marriage can help you. You can work with your lawyer or a forensic accountant to go through financial records and determine where community or joint earnings benefitted this third party. I'm thinking of a case where, to the extent that funds were used for a non-community purpose for the benefit of the third party, we were able to recoup that money and give half of it to our client. In another case I handled, we were able to use the evidence of a spouse's cheating to negotiate a good financial result.

In many states, divorce proceedings are public record. That means that anyone can go to that courthouse and get copies of the pleadings filed in your case. So in this particular case, our client's ex did not want any evidence of their cheating out in public. They felt that it could affect their credibility in their current job position, that it could really do damage to their aspiring political career, and so on and so forth. So, because of that, our client was able to negotiate a really good deal in exchange for not disclosing any of this information about the cheating.

A final word on fault

If your state is a fault state and you choose to pursue a divorce that makes your ex at fault, be careful. Turning your divorce case into a finger-pointing, he said/she said mess is expensive, emotionally taxing, and can ruin any possibility of a smooth co-parenting relationship in the future. If you're considering pursuing a fault divorce, I recommend that you seek legal counsel from a lawyer who is honest, willing to explain the risks to your case about declaring fault, and truly knows what they're doing.

Questions about who's at fault in your divorce case? Book an hour of legal coaching with one of our experts for a flat-rate fee.


Founder, CEO & Certified Family Law Specialist
Mediation, Divorce Strategy, Divorce Insights, Legal Insights
After over a decade of experience as a Certified Family Law Specialist, Mediator and law firm owner, Erin was fed up with the inefficient and adversarial “divorce corp” industry and set out to transform how consumers navigate divorce - starting with the legal process. By automating the court bureaucracy and integrating expert support along the way, Hello Divorce levels the playing field between spouses so that they can sort things out fairly and avoid missteps. Her access to justice work has been recognized by the legal industry and beyond, with awards and recognition from the likes of Women Founders Network, TechCrunch, Vice, Forbes, American Bar Association and the Pro Bono Leadership award from Congresswoman Barbara Lee. Erin lives in California with her husband and two children, and is famously terrible at board games.