While many jurisdictions still consider fault in setting alimony and some consider fault in determining property distribution, the decision to use marital fault as grounds for divorce in lieu of no-fault requires sound legal advice. Marital fault means that at least one spouse is guilty of marital misconduct that may be, but is not limited to, adultery, deviant sexual conduct, extreme cruelty or inhumane treatment, habitual drunkenness, mental illness, imprisonment, sexual desertion, drug addiction, nonsupport. Each of these terms is defined by different jurisdictions in different ways, and the legal definition may be very different than the lay conception of it. Generally, the defenses in a fault divorce are recrimination, condonation and connivance and reconciliation and the legal interpretation of these terms, like the meaning of fault, vary from jurisdiction to jurisdiction.

Allegations of fault and the defenses against it are volatile gases that make contested divorces so combustible.

In a few states, marital fault, such as adultery, works to the victim’s advantage in the distribution of property and support. In some states, judges may consider marital fault when deciding the distribution of marital property and support even though fault is not the grounds for divorce. In most states, however, economic misconduct, such as hiding assets, is treated more seriously. The most common form of economic misconduct is dissipation of marital assets. In the distribution of the marital estate, a majority of jurisdictions consider marital misconduct only when it has an economic impact on the marital estate. For example, the adulterous conduct of a man may be irrelevant, but the fact that he squandered marital funds at the racetrack with his girlfriend may be considered. A few jurisdictions consider the marital misconduct even when its impact is noneconomic or only slightly so.

Beginning with California in 1970, states began to permit no-fault divorce, and by the end of the 1970s, all but two states had some version of no-fault. Compared to fault divorce laws, many of which dated from the 19th century, no-fault was an idea whose time had come. However, in many jurisdictions, lawmakers added no-fault to the established divorce law, so fault divorce is still possible in more than 30 states.

Compared to uncontested divorces, the legal strategy behind fault divorce is much more complex, so a fault divorce means a party will need a lawyer. Even when a party has grounds for a fault divorce, many spouses today choose the no-fault route because it is easier and simpler. Some aggrieved spouses, however, may be tempted to use fault in retribution or as a means of vindication. Such strategy is often ill advised.

In most states, alleging and even proving marital fault does not work to the advantage of the party who does it. This becomes more complicated in states where courts have discretion. Consider Kansas and Kentucky. Kansas has fault divorce; Kentucky does not. Both, however, permit courts to consider fault in the distribution of marital property and spousal support.

See also Fault and No-Fault Divorce; Recrimination; Condonation; Connivance.

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