How should I respond to a divorce lawsuit filed by an at-fault spouse?

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Under the pretext of disciplining the child, my husband yells, throws things, hits walls, and behaves threateningly. He's directly hit the child a few times, and the child cringes and watches for his reaction whenever they see their father. At first I tried to resolve it, but the situation is getting worse... I think I need to file a child abuse complaint — would it be too much for me alone? The child's safety is most important, so I want to act quickly. If there's a child abuse specialist attorney, please reply.

divorce lawsuit by at-fault spouse

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作者: 김국일

Hello. I am a divorce specialist attorney at Daeryun Law Firm.

Under the Civil Act, to seek divorce through trial, the following grounds must exist.

1. When the spouse has committed an unchaste act
2. When the spouse has maliciously deserted the other party
3. When grossly unfair treatment has been received from the spouse or their lineal ascendants
4. When one's own lineal ascendants have received grossly unfair treatment from the spouse
5. When the life or death of the spouse has been unclear for 3 years or more
6. When there are other serious reasons making it difficult to continue the marriage

Our courts in principle adopt the 'at-fault principle' which does not allow divorce claims by at-fault spouses who bear major responsibility for the breakdown of the marriage.

However, in exceptional cases where the marriage has been completely broken down due to long-term separation, etc., the at-fault spouse's claim may be accepted, so you should not just expect that the claim will be dismissed because the spouse is at-fault.

In practice, judgment is centered on (1) who is the main party responsible for the breakdown of the marriage (extramarital affairs, violence, economic neglect, etc.), (2) whether the substance of marital community life still remains, and (3) whether excessive disadvantages will arise to oneself and the children upon divorce.

Therefore, it is important to organize materials proving the other party's at-fault acts (extramarital affairs, violence, non-payment of living expenses, etc.), circumstances showing your contribution to child rearing and household duties, and the fact that your living foundation will be greatly shaken upon divorce.

Additionally, you should think separately whether to "block divorce itself to the end" or to "premise divorce to some extent and bring custody, child support, consolation money, and property division conditions as favorably as possible."

Since the favorable options vary depending on the progress of the case, period of separation, and presence of children, it is desirable to design evidence collection and litigation strategy together with a divorce specialist attorney experienced in dismissing (defending against) divorce lawsuits by at-fault spouses early on.

If you request a consultation with our divorce specialist attorney, we can specifically guide you on which direction is suitable, between the divorce claim dismissal strategy or the condition optimization strategy.