Whose Fault Is It Anyway?

The real question for you is whether fault makes a difference in your case. Does it matter to a judge whether your spouse committed adultery, or left you, or was cruel to you?

By M. Marcy Jones, J.D.
Updated: May 01, 2015
Legal Separation/Divorce Process

Theories on the value of having a fault vs. a no-fault divorce abound. It's not my intention to weigh in on this controversy, but since I get so many questions from clients about this on a regular basis, I think it's important to at least address the issue. Every time I meet with a new client, these are the comments I most often hear when the question of fault comes up:

  • "He's the one having the affair! Why do I have to suffer?"
  • "She just up and left me. I can't let her get away with that."
  • "I didn't do anything wrong. Why should I have to leave my home?"
  • "I want to file on the grounds of adultery and take him/her to the cleaners!"

Although many states no longer have divorces based on fault grounds, there are states in which you still can get a divorce on a fault ground -- which usually includes adultery, cruelty, desertion, or incarceration for more than a year.

I practice in an area where people can be divorced on a fault ground or they can get a no-fault divorce based on living separately for a specified period of time, depending on whether or not they have minor children. In my area, if you can prove adultery, then you can get a final divorce immediately, or whenever you can get before a judge to make your case, which is seldom anything but immediate.

The Myth of Winning

The real question for you is whether fault makes a difference in your case. Does it matter to a judge whether your spouse committed adultery, or left you, or was cruel to you? This is what I call the "Myth of Winning."

First of all, it's not easy to prove any of these grounds. If you are able to prove your spouse's fault in court and the judge does find your spouse at fault, what does that get you? Will he or she be punished, and will you get a better deal in the end? Do you really win anything? The answer depends on your judge and your jurisdiction.

In most jurisdictions, the trend is toward less and less emphasis on fault. Even when a judge finds fault, it's usually just one of ten or more factors that are considered when dividing the marital property, awarding spousal support, or determining custody. That should give you an idea of how much emphasis a judge gives to the bad behavior of your spouse -- about 10 percent overall. Not great odds.

Of course, there are extreme cases, where one spouse may be having an affair, or a number of affairs, and/or using marital monies inappropriately, and the evidence is obvious, overwhelming, and flagrant. But those are not the norm.

The Norm, and What Judges Do

The norm is that a marriage has broken down, one spouse or the other has an affair or moves out, and then pursues a divorce. The norm is that if fault becomes an issue, the case becomes one of "he said/she said," meaning both parties are hurling allegations of fault against the other, to the point where the case becomes so mucked up the judge has no idea whom to believe.

What do judges do when there isn't enough evidence to support either side's story and they can't figure out whom to believe? They punt. They dismiss all fault grounds alleged by both sides and proceed to decide the rest of the case. You are back to square one. You have gained nothing, you've likely expended tremendous financial and emotional resources, and have done tremendous damage in the process.

Unless you have some documented evidence that could prove a fault ground, it's a waste of time and money to go down that road. The truth is there is almost nothing to be gained by claiming fault, and a great deal to lose in terms of time, money, and stress. Instead, get back to the "Big Picture" of what you want your life to look like when the divorce is over, and to keep your focus on that picture.

The truth is that if there is a provable fault ground, there was already a breakdown in the marriage. If the marriage were stable, honest, and committed, the breakdown would not have occurred. This is generally true unless there are issues of addiction, abuse, or mental illness. Once they take time to reflect on this, most clients acknowledge that this is true for them and see the reality of the "Myth of Winning."

If a Marriage is Over, it's Over

This may sound direct and blunt, and it is, but it's also the truth. If a marriage is over, it's over. You cannot make someone stay in a relationship against his or her will. Furthermore, if a marriage isn't working, it's seldom just one person's fault.

Learning to be accountable for your role in what happened in the marriage goes a long way toward ending the marriage in a more civilized way, and also toward helping you to recover and to move forward in a healthy and balanced manner.

Learning how to end your marriage in a civilized way so you and your family not only survive the process, but thrive, is vitally important. The benefit to you and your family is immeasurable.

The Big Picture

Now, the "Big Picture". Think about what's important to you. And by this I mean what's really, really, really important? As difficult as it may be for you right now, do everything within your power to answer these questions from your highest and best self and not from the place of emotional pain and present fear. You can do it. It's called getting the "Big Picture" for your life. These are challenging questions, and how you answer them can change the way your divorce goes.

  • What do you want your life to look like when your divorce is over?
  • What kind of relationship do you want with your spouse when it's over?
  • If you have children, what kind of relationship do you want them to have with each of you when it's over?
  • What kind of experience do you want this to be for you? How do you want to feel as you go through your divorce?
  • How do you want your children to remember the experience of your divorce?

Getting the "Big Picture" first gives you a goal to work toward and keeps you on track so you can act with integrity throughout the process and can more readily reach a fair and acceptable settlement. Again, this doesn't mean it will be easy for you. What it means is that by making a conscious and thoughtful plan about your post-divorce life, you will ease your way through the process with integrity, dignity, and grace. It may not look or feel like this at the time, but if you hold fast to your intentions and your plan, this will be the end result. It starts with you.


Graceful Divorce Solutions

This article has been edited and excerpted from Graceful Divorce Solutions, A Comprehensive and Proactive Guide to Saving you Time, Money, and Your Sanity (Balboa Press, 2014). M. Marcy Jones is an author, speaker, lawyer, and advocate for change. She has practiced family law since 1995, and is a settlement expert and conflict resolution advocate, specializing in collaborative practice. She is also a ytrained mediator and certified personal coach.  www.GracefulDivorceSolutions.com

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August 28, 2014
Categories:  Legal Issues

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