Most people have heard the term “fault based divorce”, but they don’t really know what it means. Many people have a misunderstanding of fault and no-fault divorces. Fault is something that was used years ago in divorces. Divorce used to be less accepted than it is now, so you had to prove fault in order to get divorced. It was used as an impediment to divorce. I will discuss fault based divorce more on this page.
What is Fault Based Divorce?
In the past, you needed a reason to get divorced and you needed to prove that reason in court. Divorce was not widely accepted, and the courts wanted to create impediments to divorce so that people would not file for it often. So, if your spouse was cheating on you, you needed to file for a fault based divorce on the grounds of adultery. You then needed to prove the adultery in court. If you couldn’t prove an extramarital affair, you were stuck. You couldn’t get divorced.
A lot of people argue that fault was a sexist rule because it impacted women more disproportionately than men. Oftentimes the woman in the relationship would take the more traditional homemaker role and the husband was out doing bad stuff. If the wife couldn’t prove adultery or another ground for fault based divorce, she couldn’t get out of the marriage. So, states did away with that and said, “Look, all you have to do is prove that your marriage is broken down irretrievably and there is no hope for reconciliation.” So now Connecticut and many states are no-fault states. Instead, you file for divorce based on irretrievable breakdown. Almost any issue can constitute “irreconcilable differences”, so it is much easier to get divorced now.
Where Does Fault Come In?
Now, there are still other issues that you can allege in a divorce, such as intolerable cruelty, habitual intemperance, etc. You’d still want to file for divorce based on irreconcilable differences so that you don’t get stuck if you can’t prove intolerable cruelty or whatever reason you allege for the divorce. But, you can use these factors in the divorce process.
Either way, you’re getting out of the marriage. If your spouse doesn’t want to divorce you, they can make your life miserable, but a court will accept the divorce.
So, where does fault come in? Well, the court can consider many factors in looking at things like how assets get divided, how alimony is awarded, how child custody is awarded, etc. They can look at who contributed to the breakdown of the marriage. So courts can still look at factors of fault.
Do Affairs Matter?
Would an affair matter in the eyes of the court? I think the general answer is no. But there might be situations where a court will take the affair into account. For example, if a person funneled money away from their marital estate to give to their lover or if they have a second family. Those situations might be treated differently and a court would not look on that kindly. But generally, I think the answer is that an affair doesn’t matter. If there’s physical or emotional abuse, I think that’s an absolute factor that courts would consider and it would be helpful to pursue that. But courts usually view an affair as a symptom of a broken marriage, not what caused the marriage to break down.
If you want to file a no fault divorce, but there are grounds for fault, we can help you determine if and when to include them in your divorce. Contact us today for more information.