Role of Fault in Divorce

by Miod and Company

When someone divorces their spouse, something that must be taken into consideration is fault. Fault refers to any serious grievance one spouse has with the other, such as:

  • Adultery (the most common)
  • Cruelty
  • Desertion
  • Confinement in prison
  • Physical or mental incapacity

All states allow for no-fault divorces, in which neither party is considered to be at fault. There are different state laws surrounding how a no-fault divorce can be conducted. In some states, it is necessary for the partners to spend a period separated prior to being able to settle the divorce. 

The court cannot stop a no-fault divorce; even if one spouse wishes to remain married, the fact that the other wants the divorce is considered an irreconcilable difference of opinion. No-fault divorces tend to come out “cleaner”, with the parties simply splitting their assets as dictated by state law. So, why would someone choose to pursue the route of fault divorce, when this tends to complicate the entire process?

There are several reasons. If the couple (or one party therein) doesn’t wish to wait out the separation period, they may choose to circumvent it by filing with fault in mind. 

Another, bigger consideration, is that in states that permit fault divorces, the injured party may be able to walk away with a greater portion of the assets, or more alimony. When calculating these factors, the court will take into account the injured party’s grievances, particularly those which would have an economic impact upon them, and move forward with that understanding.

The court can veto a fault divorce for several reasons:

  • Condonation, in which the fault was allowed for by the other spouse
  • Connivance, in which the fault could be considered to have been “set up” by the not fault party
  • Provocation, in which the party claimed to be at fault can make a countering claim that their fault was incited by behavior of the other spouse
  • Finally, collusion, in which the court determines that the divorcing couple manufactured the fault they claim in order to, say, avoid the separation period.

Regardless, people are unlikely to attempt these defenses, as they require great time and expense to prove, and because the court typically won’t stop the divorce even with evidence of these defenses being valid. It’s simply not generally accepted to make someone stay married to someone that they don’t want to be married to.

At the end of the day, the most important role of fault in a divorce for you to account for in accounting is the role it plays in the division of assets. Reading up on your state’s laws regarding division of community property in fault divorces will lead to a better understanding of how to treat these cases in order to fairly and smoothly aid the client through this process.

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