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How Fault Grounds May Affect the Outcome of a Divorce

When we speak about fault grounds in divorce, we are typically speaking of adultery, desertion, cruelty and constructive desertion. While there are others, such as incarceration for a felony for more than one year, they are far less common and usually very fact-specific. Given the prevalence of the more common grounds, we can more easily observe the trends and tendencies that accompany them.

First, a fault-ground for divorce allows one to file for divorce immediately, rather than waiting twelve months after a separation. That may not have bearing on the substantive outcome, but may significantly accelerate the timeline in reaching the end of the divorce process.

In property division (equitable distribution), the reason for the breakdown of the marriage, including any fault grounds, is a factor for the Court to consider when determining what is a fair and equitable allocation of marital property. However, bad behavior alone does not necessarily translate into an uneven division of property favoring the aggrieved spouse. In other words, the Courts generally will not "punish" the at-fault spouse just for his or her conduct. However, where the fault ground is accompanied by an economic loss to the marital estate, such as a cheating spouse spending large sums on a paramour by way of gifts, hotels, etc., the Court may make that spouse reimburse some portion of those expenditures to the marital estate. In such a situation, that may mean the innocent spouse receives a greater share of what assets actually remain.

Fault and the reasons for the breakdown of the marriage factor into spousal support in more significant ways. A spouse who is guilty of adultery - but not any of the other fault grounds - can be completely barred from receiving spousal support, even if the circumstances would otherwise justify an award of spousal support. There are exceptions to this bar, but the adulterous spouse faces a significant burden to overcome it. Aside from adultery, fault grounds remain a relevant factor in the Court considering whether support should be granted, and if so, for how long and in what amount. Again, however, spousal support is not supposed to be awarded as punishment to an at-fault spouse, and so one cannot say that fault necessarily mean that support will be any greater in amount or duration.

Fault grounds for divorce are largely irrelevant to custody and visitation determinations. Nevertheless, the underlying conduct may remain highly relevant. The fact that a spouse committed adultery may be an offense against the other spouse, but it is not an offense against the children. However, if that spouse has exposed the children to the paramour, has neglected care of the children to carry on the affair, or is living with the paramour, such facts could be hugely relevant to what custodial arrangement is in the children's best interests. Physical abuse constituting cruelty, even if not directed to the children, may be reflective of anger or impulse control issues of the guilty parent, or may have resulted in a fractured relationship with or fear of the parent by the children. Desertion of the family may likewise evidence a parent's neglect for the well-being and physical and emotional needs of the children.

Fault has no impact upon child support, which is entirely predicated on the parties' incomes and certain specific costs related to the children's care.

The final issue to which fault may be relevant is an award of attorney fees. In considering whether one party should be required to compensate the other for some or all of the attorney fees they have incurred, the Court typically takes into account such factors as relative financial resources, who substantially prevailed over the other, and whether one party unnecessarily increased the cost of the litigation. However, the Court can also consider the necessity and genesis of the divorce litigation itself, which may implicate the fault grounds as a relevant factor.

While relevant in many ways to divorce issues, as explained herein, proving a fault ground for divorce may not necessarily translate into more actual dollars or assets being awarded to the innocent spouse. Coupled with the increased cost of proving fault - particularly adultery - litigating fault could ultimately result in a net loss to the innocent party. Even if you have a basis for pursuing a divorce based on a fault ground, it may not be in your interests to do so, and you should ask your attorney to realistically assess and advise you as to the potential benefits and detriment.

If you have any questions or would like to discuss your legal matter with an attorney, please contact Duff & Kronfeld, P.C. at (703) 591-7475 for a complementary, 30-minute consultation.

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Duff & Kronfeld, P.C.
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Fair Oaks Commerce Center
Fairfax, VA 22030

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