Wednesday, July 27, 2011

What Effect Does Fault Have in a Divorce?

by: Eric A. Ballinger, Esq.

The issue of fault is a complex when it comes to divorce. It usually is the straw that breaks the camel's back with regard to ending the marital relationship. While some refuse to recognize role that their own fault plays in the dissolution of their marriage, many are surprised at the roll that fault plays in the outcome of their divorce. In the modern divorce, fault plays a roll in determining the outcome of a divorce case, but it is not the sole decisive fact.

Into the late Sixties, fault was an essential element in a divorce case. Until the Georgia legislature adopted the "no fault" ground for divorce, there was a requirement of fault by one party for a spouses to divorce, even if they agreed that the marriage should be dissolved. In the modern divorce, there is no requirement of a finding of fault for the parties to divorce, however the issue of fault is legally relevant in deciding the issues that are ancillary to the divorce, division of assets and debts, alimony and even child custody.

Usually fault, adultery, alcoholism, drug addiction, abusive behavior and the like, are the facts that motivate a spouse to seek a divorce. These are usually the most emotional issues of the divorce and motivate the parties to press the issue. However, fault is not the only issue the court takes into consideration in deciding the issues before it and fault must be put into perspective. Many litigants are surprised when they find out that even in the face of a partner that has committed the most despicable acts, divorce is rarely a "winner takes all" proposition and there are no punitive damages in a divorce.

When reviewing the facts in a divorce case, it is important to look at the case from the through the lens that the judge sees the case. One thing to take into consideration is that divorce cases are heard by Superior Court judges. These are the same judges that hear murder, rape and child molestation cases as well in addition to their civil case load. This gives the judge hearing a divorce case a much different perspective than most civil litigants who have never experienced this sort of in their life.

In addition, the Court is weighing many other aspects in deciding the divorce case as well. A mother may have committed adultery, but still is a loving parent who has never exposed the children to her indiscretions. A Father may be a unemployed deadbeat, but if he has no money, how can he pay alimony? A husband may be a functional alcoholic but how will the children feel if he is cut out of their lives? A man my have brutalized his wife during the marriage but what is to be gained if he is left on the street destitute?

The Court also looks at the effect that marital fault has on the break up of the marriage. Is the fault complained of really the cause of the break up of the marriage or is is some remote act from years gone by? The truth of the matter that judges are used to hearing the many gripes that spouses have about each other and figure that in a divorce there is usually more then enough blame to go around. If the fault is from years gone by, the court will very likely treat the act as condoned. On the other hand, if one spouse catches the other in serious misconduct and acts decisively on it, the Court can will treat the issues seriously.

Most importantly, the Court looks at the fault issues as they may effect the minor children of the parties. While judges rarely loose sleep over what happens between adults, they are always looking out for the best interest of the children involved. Children that are exposed to alcohol, drug abuse, violence and even adulterous relationships are at risk. Regardless of the what has transpired between the parents, the Courts will take decisive action to protect children from these sorts of risks.

The effect that the fault issues will have on each divorce case varies. Much of it depends on the evidence presented. It also depends on the individual judge hearing the case. While evidence of fault is not the most important facts the Court needs to hear, it certainly will help the judge decide which of the two parties to inconvenience the most. It is important to consult an experienced family lawyer to help you put the issue of fault into persecutive for your divorce case.


  1. Interesting blog post...brings up a few questions I have about my recent divorce. Actually, after a call to the court house last Friday I find out that I am still married to my louse because after the agreement was read in court it took his attorney over a month to type the papers up. When they were finally submitted to me for my signature it was obvious that he and his attorney had colluded to change the papers so the outcome would favor my "husband" thinking that I would just sign them without reading them over because I defended myself. Obviously, someone doesn't know me too well. I read them and noticed all of the changes and refused to sign them. I even ordered a copy of the transcript as proof in case anything becomes of it. Back to my original point, you say that much of it depends on what evidence was presented. What if that evidence was not allowed to be presented because of threats made to one of the parties? I was told by his attorney that the evidence I had on my husband didn't matter because the judge hears murder and rape trials all day long. You say the judge is there to look after the best interest of the children. How can that happen if a person is threatened and blackmailed into not bringing it up? My louse was a terrible father. He never spent time with his children because he was too busy smoking pot and looking at the most vile and disgusting pornography ever created. I took them to all school events and sports events myself. People thought I was divorced because I was the only one there. I am sure the judge would have liked to know that about who he was giving unsupervised visitation to. The straw that broke my camel's back was the affair. On top of the pot and the porn- all 130,000 plus images which were left sitting on the desk on unmarked cd's and dvd's that anyone could have popped in the computer and viewed, there was the physical, verbal, mental and emotional abuse that took place mainly in front of the children while sitting at the dinner table or trapped in the car whipping down the highway when no one could escape. Would a judge want children left unsupervised with an animal like I have described? I doubt it. He was never allowed to hear it because of the threats I received. What do you think? Should I contact DFACS or an attorney to have the case looked further into? Every other weekend I worry and pray that my children will return to me safe and unscathed from time spent alone with such a monster. Thanks.

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