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When Does “Fault” Factor Into a Divorce?

When Does “Fault” Factor Into a Divorce?

Date : December 13th, 2016

Posted By : admin

When Does “Fault” Factor Into a Divorce?

Most of my divorce clients start out explaining the facts of their case to me by letting me know that their spouse has been unfaithful to them or in some other way was at fault in causing them to seek a divorce. They mostly want to hear words of comforts from me where I confirm to them that we are going to rip the other spouse’s heart out and show it to them while it’s still beating and then put their head on a platter just for good measure. After all, it’s what they deserve for causing the divorce. Unfortunately, the fact that the other spouse is at fault for the divorce is, in most cases, something that is not even looked at. Only in cases where there is division of property, in an equitable distribution state, does “fault” factor into a divorce.


First, what is fault? As I stated in my previous post, fault in a marriage setting involves adultery, abandonment, insanity, cruelty, imprisonment or undisclosed impotence, just to name the main fault categories. In most divorces where the parties are only getting a divorce and there is no division of property, fault does not come into play at all. Just file the papers and get divorced.


In several states (Arizona, California, Idaho, Louisiana, New Mexico, Nevada, Texas, Washington, and Wisconsin) division of property is done under the concept of community property. A very basic explanation of community property is that the husband and wife own martial property (and is therefore divided in a divorce) equally. With few exceptions, all marital property is divided 50/50 between the parties in a divorce. Fault generally does not factor into the division of property in community property states.


Most other states are equitable distribution property division states. The basic concept of equitable distribution is for the parties in a divorce to divide the marital property in a fair manner. However, fair does not always mean equal. Unequal division of property is done based on the specific circumstances involved in the particular marriage and divorce. Here, the Judge can look at the following factors to figure out how the marital property should be divided:


■ How long were the parties married?
■ How much income does each parties make?
■ Do the parties have separate property that is not marital property?
■ What effort did each party put into the accumulation or accruing of marital property?
■ How much value is given to homemaking and non-income based contributions to the marriage?
■ Did one party squander the marital property or cause debt to accrue?
■ What is the age and health of each party?
■ Who is caring for the children (if any)?
■ What is the cause of divorce, i.e. infidelity (in states that recognize fault-based divorce?)


A judge in this type of case has a lot of fact finding to do in order to properly divide the marital property. As you can see by examining the list, there are many important factors, one of which is “fault.” In other words, the acts of one spouse that adversely affect the marriage (for example infidelity, cruelty, etc.) can be used against that spouse when dividing the property. So here, fault can definitely factor into a divorce when it comes to division of property.


In my future posts, I’ll get into determining what is considered marital property. As you can imagine, that is a hot topic that the courts around the country continue to tackle. I’ll also start giving actual examples from real cases around the country.

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