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

Hello. This is a divorce attorney at Daeryun Law LLC.

Under the Civil Act, to seek a divorce through a court proceeding, the following grounds must exist.

1. When the spouse has committed an act of infidelity
2. When the spouse has maliciously deserted the other party
3. When one has been extremely unfairly treated by the spouse or the spouse's lineal ascendants
4. When one's own lineal ascendants have been extremely unfairly treated by the spouse
5. When it has been unclear for three years or more whether the spouse is alive or dead
6. When there is any other serious ground that makes it difficult to continue the marriage

As a general principle, our courts adopt the 'fault-based principle,' under which a divorce claim by an at-fault spouse who bears major responsibility for the breakdown of the marriage is not permitted.

However, in exceptional cases where the marriage has completely broken down due to a long period of separation and similar circumstances, there is room for an at-fault spouse's claim to be accepted, so you should not rely solely on the expectation that 'the claim will be dismissed because the other party is an at-fault spouse.'

In practice, the determination centers on (1) who bears the main responsibility for the breakdown of the marriage (such as infidelity, violence, or economic neglect), (2) whether the substance of the marital community life still remains, and (3) whether excessive disadvantage would arise for you and your children upon divorce.

Therefore, it is important to organize in concrete terms the materials proving the other party's fault-based conduct (such as infidelity, violence, or failure to pay living expenses), the circumstances showing that you have contributed to child-rearing and household affairs, and the fact that your livelihood would be substantially shaken upon divorce.

In addition, you should consider the strategy separately in terms of whether to 'block the divorce itself to the end' and whether to 'accept divorce to some extent as a premise while securing the most favorable terms possible for custody, child support, consolation money, and the division of marital property.'

Because the favorable options vary depending on the course of the case, the period of separation, and the presence of children, it is advisable to design the evidence gathering and litigation strategy together with a divorce attorney experienced in having such at-fault-spouse divorce claims dismissed (successfully defended).

If you request a consultation with a divorce attorney at our firm, we can provide specific guidance on which direction would be suitable, whether a strategy to have the divorce claim dismissed or a strategy to improve the terms.