Most people going through divorce have heard the phrase “No Fault Divorce”. No fault divorce means that the courts do not care whether someone “caused” the divorce. . . if a husband or wife wants a divorce, he/she will be granted the divorce whether the other spouse wants it or not. It does not matter if someone caused the divorce.
Still, the question of fault almost always comes up. The most common causes of divorce are financial mismanagement/dishonesty and infidelity. . . other causes include drug abuse, alcoholism, verbal or physical abuse and other forms of psychological abuse. If you are a victim of any of these forms of fault, you should discuss the situation with your attorney to determine what options are available to you to protect your interests (financial, physical/mental well-being) during the divorce process (i.e. exclusive use of the marital home, ex-parte orders to preserve marital finances and status quo, etc.).
The other question many people ask is whether they will gain an advantage if the other spouse is at fault. This is a complex question. As stated, courts do not care who is at fault. But, if there is fault, you will have to decide how to pursue it or how to defend it. This can be very costly. You will have to undertake a cost/benefit analysis with your lawyer. I always put all options on the table for my clients and that helps them decide.
For example, if you do not have a lot of assets, why spend $1,000’s of dollars litigating over who is at fault? However, if there are significant property issues, then a slight advantage (if you establish the other party is at fault) can be financially beneficial in the form of a larger split of the assets or even by receiving a larger amount or term of spousal support.
Fault can also help the victim if there are significant custody issues. However, remember, there are 12 Child Custody Factors. . . so, it’s possible the fault you establish will only gain you an advantage on one or two of the factors. Great care should be taken to determine whether litigating fault is going to be worthwhile. The more you fight over such issues, the higher the cost of your divorce. Nevertheless, in the right case, I do not shy away from pressing these issues for my client. . . it is impossible to put a price tag on peach of mind that you attained the right custody and parenting time situation since you are going to have to live with the arrangement for many years to come.
The vast majority of cases do not warrant litigating fault. However, for your own peace of mind, you should discuss these issues with your attorney. . even if you are the one who created the fault, you want to fully disclose the issues to your attorney so there are no surprises. Please contact me for a free consultation to discuss these very important issues.