at fault divorce

Does it matter who’s “at fault” in a divorce?

So many clients walk in to my office fuming at their ex – 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,” anyway?

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 to 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, either, 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 in your business.

Oh, and if you think you’re fault-less, think again: investigators and/or 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 in to 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 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, had gone to benefit this third party. To the extent that funds were used for a non-community purpose for the benefit of this 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 help 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 her cheating out in public. She felt that it could affect her credibility in her current job position, that it could really do damage on her aspiring political career, and so on and so forth. So because of that, our client was able to negotiate a really good deal for himself in exchange for not disclosing any of this information about her cheating.

I delve a lot deeper into this in this episode of the Hello Divorce Podcast: What do you do if you find out your partner was cheating on you in the middle of the divorce process?

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 who truly knows what they’re doing. 

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