How Fault Can Still Affect Your No Fault Divorce

While there is often one spouse at fault, no fault divorce is now the law in many states. No-fault divorce does not mean that no one was at fault in the divorce, it just means that the court will not consider fault in making decisions regarding property division, child custody, or support (spousal maintenance or child support).

Different Kinds of Fault

It is common that one spouse may be “at fault” in a divorce. Perhaps one spouse had an affair, or had a drinking problem that interfered with everyday life and with the marriage. One spouse might refuse to work or might have an untreated mental illness that made the marriage impossible. Technically, a court in a no-fault state cannot punish one spouse for his/her fault in the deterioration of the marriage by awarding more to the spouse who was not at fault.

Drug or Alcohol Abuse

In reality, there may still be repercussions for a spouse who was at fault in bringing about the divorce. A person who has a drug or drinking problem may not get custody of his/her child, or may not get as much time with his/her children as he/she would like because the court may determine that the drug or drinking problem interferes with the parent’s ability to care for a child.

Extra-marital Affair

A spouse who has had an extra-marital affair may be seen as one who does not put his/her children’s needs first. A spouse who has been out all night or off with another person rather than at home will not be able to show the court he/she has been the primary caregiver for the children. This can affect the custody decisions made by the court because the primary caregiver is typically awarded more parenting time than a spouse who was not involved in the day to day care. A spouse who puts his/her own sexual needs before the needs to care for the children can be seen as one who is not a responsible parent.

Mental Health Issues

There may be a need for psychological intervention. While this is not a punishment for the “at-fault” spouse to receive medical treatment or therapy, it does result in parenting or financial repercussions that would otherwise not exist in a similar divorce that did not involve untreated mental illness. A person who is seen as mentally unstable or financially irresponsible will likely not have a favorable result in financial or custody matters.

Getting Legal Help

A spouse who is on either end of the fault equation should have an experienced family law attorney to advocate for the best result possible given the circumstances. No one should assume that fault will not have any effect on custody, or financial issues in a divorce. It is critical that a client be honest with the attorney he/she hires in order for the attorney to properly prepare the best case for a spouse who might be “at fault.” Consulting an attorney with the truth will also allow an attorney to offer the best and worst scenarios before you begin the divorce process.

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