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Finding Fault

BY Barbara Handschu
April 01, 2003

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.

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