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.