Finding Fault

A Brief History

In the Colonial period, access to divorce was characterized by regional differences. In the South, as in Mother England, absolute divorce was not permitted. In the North, legislatures or courts would occasionally permit a divorce. The legislative processes soon became too cumbersome in the North and eventually divorce by the courts became more common, although in the South legislative divorce remained for a longer period of time.

While there was a brief period of so-called loose divorce laws, by the late 1800s all states adopted a statutory scheme that conditioned the granting of a divorce upon some finding of fault. Common fault grounds included adultery, cruelty and/or desertion. The system also generated interesting defenses such as “condonation” (the petitioning spouse knew of the fault but continued in the marriage), “collusion” (the parties conspired to collude, thereby depriving the court of jurisdiction) and “recrimination” (since the petitioner had to be both “innocent and injured” in order to obtain the divorce, mutual fault could result in the denial of the petition).

By the late 1960s, social changes related primarily to the view of marriage as an institution that should last only as long as the emotional needs of the spouses were served by it, led to growing dissatisfaction with the necessity of proving fault.

There was widespread recognition that many of the grounds were fabricated, leading to perjured testimony and a consequential growing disenchantment with the role of the law in marital dissolutions. California led the way in correcting this situation, enacting the first “no-fault” law in 1969. Many states followed, until by 1985 all states had at least some form of no-fault provision.

Is Divorce 'Too Easy'?

Although opinion surveys suggest that many Americans think divorce is “too easy” to obtain, efforts to reintroduce exclusive fault-based laws or limited contractual grounds for the dissolution (such as covenant marriages) have not met with much success.

That does not mean, however, that fault-based grounds are a thing of the past. In spite of the movement toward enactment of no-fault laws, most states added these grounds to their traditional fault-based grounds as opposed to substituting one for the other. Some states merely added a length of separation as an additional ground for divorce. Many jurisdictions therefore retain the traditional fault-based grounds for dissolution.

The necessity of proving these fault-based grounds can be triggered when, for instance, the responding party denies that the marriage is “irretrievably broken” or that “irreconcilable differences” exist as alleged by the person seeking the dissolution. Most clients will come to accept the fact that their spouses will be able to obtain a divorce eventually. More significantly, the question arises as to whether fault will have an impact on the property distribution and/or support.

While there is wide variation among the states concerning this issue, there appear to be at least two circumstances where fault will be considered regardless of statutory exclusion. The first is “economic misconduct” that results in dissipation of the property available for distribution. The second is misconduct that results in an increase in one spouse's economic needs, such as those of a victim of violence whose injuries result in an inability to be self-sufficient.

The Relevance of Fault

Beyond these circumstances, there are further variations on the relevance of fault, depending on whether property division or support is at issue. Approximately 20 states are “pure no-fault” states, disallowing consideration of fault in both property division and support. About one-third of the states allow consideration of fault in both types of cases. The remaining states represent hybrid versions of the others, with the general rule being that fault is more likely to be considered in awards of support than in the distribution of property.

Several rationales for eliminating the relevance of fault to economic consequences of divorce are in existence. Opponents of fault as a consideration (which would include the drafters of the American Law Institute's Principles of the Law of Family Dissolution) argue, among other things, that the functions of a fault principle are better served by tort or criminal law.

In fact, one of the rationales for eliminating fault in determining the economic consequences of divorce is the availability of other legal remedies for marital misconduct. With the abolition of inter-spousal immunity, the number of tort suits between spouses has increased. These causes of action may include attempts to inflict serious bodily injury, the transmission of a sexual disease or the intentional infliction of emotional distress.

Two caveats are in order. First, some jurisdictions may require joinder of any tort action with the dissolution. Failure to do so may result in the tort cause of action being barred. Second, one must exercise extreme caution not to agree to a general waiver and release of all “claims” if the client enters into a stipulated settlement. Such a general release will have an impact on further tort litigation.

The second rationale is based on analogizing marital breakdown to breach of contract. The difficulties are in defining conduct that represents a “breach” and in ascertaining a single cause or behavior that led to the marriage breakdown. Interpersonal relationships rarely lend themselves to the neat descriptions of rights and responsibilities contained in most contract provisions.

Those who argue for the retention of fault as a factor in economic awards suggest that divorce is an equitable proceeding and that, therefore, the conduct of the parties is always relevant. They believe that a spouse's inappropriate marital behavior, or serious marital misconduct as defined by statutory and decisional law, serves a valid function as the basis for an economic remedy.

Fault and Custody

In custody determinations, fault comes into consideration in several ways. Most frequently, one of the parents (the primary custodian) requests that the other parent not be allowed to see the children if that parent is in the presence of an unrelated other person, or if the parent has an unrelated person in residence when the children are visiting on an overnight basis. These types of restrictions are often requested when the “other person” is the one who is perceived as the “cause” of the marital breakdown.

Some courts may require a finding that there is a nexus between the perceived harm and any restriction; other courts may impose restrictions when children of a young age are involved, and are therefore presumably very impressionable. Still other courts may impose restrictions on overnight visitations only.

Fault also comes into custody cases in another manner — a parent who has a “significant other” during the marriage or after the physical separation may come under the court's scrutiny for putting his or her own needs first and not spending adequate time with the children. Because a judge has so much personal discretion under the “best interests of the child” standard, it may be difficult to predict a judge's reaction to the relationship. For this reason, it is wise to advise clients who have children to forgo any serious relationships until the divorce is completed.

Finally, some statutes presume harm to a child if there has been domestic violence in the home. While all states would consider abuse directed toward a child to be relevant, some have gone further and specifically included exposure to abuse among other family members as relevant. For instance, at least one state requires that if a child is to be placed with a parent who has battered another adult in the home, the court must make specific findings of fact (not required in other cases) as to why that would be in the child's best interest. Finally, some states conclusively deny custody to an adult who has committed certain crimes against the child.

While the majority of states still consider fault as relevant to the economic consequences of divorce, the importance attached to these instances of fault is likely to be significantly higher to the client than to the judge. Good counseling skills will be necessary.

One of the most difficult aspects of family law practice is dealing with a client who believes he or she has been wronged by the other spouse — and expects the legal system to respond in a punitive manner.

The pain and the anxiety are apparent when the client answers your initial question, “May I ask what brings you here to see me?” with tears or anger spewing forth. The new client says, “I can't believe that this has happened to me.” He or she wants to spend the entire consultation time telling you how horrible the other spouse is, and the overpowering feelings of betrayal. Is the marital fault of one partner going to make a difference in the divorce proceedings?

The client is often dismayed to learn that the “fault” of the other spouse may not be given as much consideration by the court as the client feels is appropriate. He or she will not be happy to hear that marital fault may not even be considered in determining entitlement to spousal support, for instance. The client must first be informed of the legal relevance of fault in the jurisdiction, and then counseled as to how it may be used in the particular situation. Depending on the jurisdiction, fault can be relevant in several contexts, such as the grounds for the dissolution, division of property or the granting of spousal support. Behavior that negatively affects children is always relevant in child-custody determinations.

A Brief History

In the Colonial period, access to divorce was characterized by regional differences. In the South, as in Mother England, absolute divorce was not permitted. In the North, legislatures or courts would occasionally permit a divorce. The legislative processes soon became too cumbersome in the North and eventually divorce by the courts became more common, although in the South legislative divorce remained for a longer period of time.

While there was a brief period of so-called loose divorce laws, by the late 1800s all states adopted a statutory scheme that conditioned the granting of a divorce upon some finding of fault. Common fault grounds included adultery, cruelty and/or desertion. The system also generated interesting defenses such as “condonation” (the petitioning spouse knew of the fault but continued in the marriage), “collusion” (the parties conspired to collude, thereby depriving the court of jurisdiction) and “recrimination” (since the petitioner had to be both “innocent and injured” in order to obtain the divorce, mutual fault could result in the denial of the petition).

By the late 1960s, social changes related primarily to the view of marriage as an institution that should last only as long as the emotional needs of the spouses were served by it, led to growing dissatisfaction with the necessity of proving fault.

There was widespread recognition that many of the grounds were fabricated, leading to perjured testimony and a consequential growing disenchantment with the role of the law in marital dissolutions. California led the way in correcting this situation, enacting the first “no-fault” law in 1969. Many states followed, until by 1985 all states had at least some form of no-fault provision.

Is Divorce 'Too Easy'?

Although opinion surveys suggest that many Americans think divorce is “too easy” to obtain, efforts to reintroduce exclusive fault-based laws or limited contractual grounds for the dissolution (such as covenant marriages) have not met with much success.

That does not mean, however, that fault-based grounds are a thing of the past. In spite of the movement toward enactment of no-fault laws, most states added these grounds to their traditional fault-based grounds as opposed to substituting one for the other. Some states merely added a length of separation as an additional ground for divorce. Many jurisdictions therefore retain the traditional fault-based grounds for dissolution.

The necessity of proving these fault-based grounds can be triggered when, for instance, the responding party denies that the marriage is “irretrievably broken” or that “irreconcilable differences” exist as alleged by the person seeking the dissolution. Most clients will come to accept the fact that their spouses will be able to obtain a divorce eventually. More significantly, the question arises as to whether fault will have an impact on the property distribution and/or support.

While there is wide variation among the states concerning this issue, there appear to be at least two circumstances where fault will be considered regardless of statutory exclusion. The first is “economic misconduct” that results in dissipation of the property available for distribution. The second is misconduct that results in an increase in one spouse's economic needs, such as those of a victim of violence whose injuries result in an inability to be self-sufficient.

The Relevance of Fault

Beyond these circumstances, there are further variations on the relevance of fault, depending on whether property division or support is at issue. Approximately 20 states are “pure no-fault” states, disallowing consideration of fault in both property division and support. About one-third of the states allow consideration of fault in both types of cases. The remaining states represent hybrid versions of the others, with the general rule being that fault is more likely to be considered in awards of support than in the distribution of property.

Several rationales for eliminating the relevance of fault to economic consequences of divorce are in existence. Opponents of fault as a consideration (which would include the drafters of the American Law Institute's Principles of the Law of Family Dissolution) argue, among other things, that the functions of a fault principle are better served by tort or criminal law.

In fact, one of the rationales for eliminating fault in determining the economic consequences of divorce is the availability of other legal remedies for marital misconduct. With the abolition of inter-spousal immunity, the number of tort suits between spouses has increased. These causes of action may include attempts to inflict serious bodily injury, the transmission of a sexual disease or the intentional infliction of emotional distress.

Two caveats are in order. First, some jurisdictions may require joinder of any tort action with the dissolution. Failure to do so may result in the tort cause of action being barred. Second, one must exercise extreme caution not to agree to a general waiver and release of all “claims” if the client enters into a stipulated settlement. Such a general release will have an impact on further tort litigation.

The second rationale is based on analogizing marital breakdown to breach of contract. The difficulties are in defining conduct that represents a “breach” and in ascertaining a single cause or behavior that led to the marriage breakdown. Interpersonal relationships rarely lend themselves to the neat descriptions of rights and responsibilities contained in most contract provisions.

Those who argue for the retention of fault as a factor in economic awards suggest that divorce is an equitable proceeding and that, therefore, the conduct of the parties is always relevant. They believe that a spouse's inappropriate marital behavior, or serious marital misconduct as defined by statutory and decisional law, serves a valid function as the basis for an economic remedy.

Fault and Custody

In custody determinations, fault comes into consideration in several ways. Most frequently, one of the parents (the primary custodian) requests that the other parent not be allowed to see the children if that parent is in the presence of an unrelated other person, or if the parent has an unrelated person in residence when the children are visiting on an overnight basis. These types of restrictions are often requested when the “other person” is the one who is perceived as the “cause” of the marital breakdown.

Some courts may require a finding that there is a nexus between the perceived harm and any restriction; other courts may impose restrictions when children of a young age are involved, and are therefore presumably very impressionable. Still other courts may impose restrictions on overnight visitations only.

Fault also comes into custody cases in another manner — a parent who has a “significant other” during the marriage or after the physical separation may come under the court's scrutiny for putting his or her own needs first and not spending adequate time with the children. Because a judge has so much personal discretion under the “best interests of the child” standard, it may be difficult to predict a judge's reaction to the relationship. For this reason, it is wise to advise clients who have children to forgo any serious relationships until the divorce is completed.

Finally, some statutes presume harm to a child if there has been domestic violence in the home. While all states would consider abuse directed toward a child to be relevant, some have gone further and specifically included exposure to abuse among other family members as relevant. For instance, at least one state requires that if a child is to be placed with a parent who has battered another adult in the home, the court must make specific findings of fact (not required in other cases) as to why that would be in the child's best interest. Finally, some states conclusively deny custody to an adult who has committed certain crimes against the child.

While the majority of states still consider fault as relevant to the economic consequences of divorce, the importance attached to these instances of fault is likely to be significantly higher to the client than to the judge. Good counseling skills will be necessary.