Divorce Fault Grounds (part 3 of 3)

Fault is a permissible consideration, by statute, in both property distributions and alimony awards.  In the context of property division, fault may be considered if it caused the breakdown of the marriage and: (1) caused substantial physical or mental pain and suffering; or (2) resulted in a substantial economic loss to the marital estate or the injured party.  If this test is met, then fault can also be considered in the context of an alimony award.

Ultimately, however, the court’s decision on alimony and property division matters is a matter of equity and an exercise of significant discretion.  A finding of fault may be given significant weight and result in a large impact on property division and alimony or it may have no impact at all in matters of property division and alimony.

Divorce is an emotional process.  Parties often have divergent and strongly-held views of the reasons for the failure of the marriage.  In addition, most parties are not at their best during the process, causing them to say and do things that they later regret.  It is in this context that, at times, parties wish to pursue fault regardless of financial cost or emotional cost as a reaction to the pain associated with marital failure and for the purpose of retribution, rather than because of the legal remedies available in the form of alimony and property division.

This is an ill-advised approach.  Fault grounds are appropriate and serve a party’s best interest when: (1) fault will make a meaningful difference to the financial outcome of the case; and (2) a party is in possession of the necessary evidence or is willing to fund the discovery necessary to obtain it.  Even then, a party wishing to pursue fault should understand that such fault allegations will likely result in lengthy litigation and increased costs from associated discovery.  The discovery necessary to provide fault might be quite expensive.

About the Author: Margaret Kerouac

Print this entry

^ Top

Clients. Colleagues. Community.

Since 1946, Orr & Reno has strived to provide our clients with high-quality, ethical and valued legal services; foster a collegial work environment; support professional and personal balance; and invest in our community.

Contact Us