By Matt Allen
Alleging fault means that one spouse is at fault for the break up of the marriage. But now that all states have some form of no-fault divorce, why would someone pursue a divorce on fault grounds? Pursue legal advice on divorce from your attorney, but follow these general guidelines on when to pursue a fault-based divorce.
Won’t it just take more time, money and effort to prove fault when you can simply file for a no-fault divorce and avoid those extra obstacles?
According to Cordell & Cordell divorce lawyers, a fault-based divorce is generally only pursued: if the spouse alleging fault can gain a greater share of the community estate; if the state considers fault when determining alimony; and if it results in an advantage in a child custody decision.
Texas divorce attorney Jennifer Hankinson said many states, including Texas, consider marital misconduct as a factor in determining the amount, duration and manner of any alimony payments that may be awarded.
In Georgia, if a spouse can prove the other spouse committed adultery that caused the breakup of the marriage, then the cheating spouse is automatically banned from receiving alimony.
“So often, you’ll get a guy coming in with all kinds of allegations against his wife regarding adultery, and his hope is to prevent her from receiving alimony,” said Georgia divorce lawyer Kevin Mammola.
Fault grounds may also be alleged to possibly secure an advantage for the purposes of property division or child custody.
Hankinson said some states consider marital fault when dividing property. So a key advantage of alleging fault is to be awarded a disproportionate share of the community estate. However, the spouse alleging fault has the burden of proving it is true at court.
Mammola said generally the only fault-based ground still widely used in his state is adultery. This is most often used simply to show how bad of a spouse the adulterer is in hopes that the judge or jury punishes the cheating spouse by awarding a disproportionate share of the marital estate to the other party.
You can of course use the evidence of fault as a strategic advantage even before trial, according to Mammola.
“Sometimes, if you have some serious evidence of adultery, embarrassing stuff, or maybe evidence that the other party committed adultery with a co worker, which might get them fired, then you may allege adultery as grounds for divorce as a tactical advantage to get the other party to settle quickly for what you’re asking for,” Mammola said.
Some states, such as Michigan, only have no-fault divorce so you can always allege in the complaint various wrongdoings, like adultery, but that wouldn’t be the grounds for the divorce, and in fact, would have no bearing on your ability to get a divorce.
However, things like adultery, abuse, abandonment, or other wrongdoings, are sometimes looked at in terms of deciding issues of parenting time and child custody, according to Cordell & Cordell attorney Tamara Hoffstatter.
“So, even if you are in a no-fault state, you might allege adultery in your pleadings as a way of getting it out there to show that custody with your spouse would not be in the child’s best interest,” Hoffstatter said.