Fault-Based Divorce Grounds: Expert Strategy to Prove Marital Fault

Fault-based divorce grounds provide the petitioner with a legal basis for seeking a divorce that is superior to the no-fault ground in jurisdictions where proof of fault can materially increase the alimony award or affect the distribution of marital property, because most states that retain fault grounds allow the court to consider the respondent's marital misconduct when determining the amount and duration of alimony, even if the state would have granted a no-fault divorce on the grounds of irretrievable breakdown. Contested-divorce and divorce-litigation counsel can evaluate whether the specific marital misconduct alleged by the petitioner satisfies the elements of a recognized fault ground for divorce under the applicable state law, assess whether the available evidence is sufficient to prove the fault ground at trial, and advise on the strategic decision of whether to assert fault grounds in addition to or instead of the no-fault ground.

The table below compares the four most important states for fault-based divorce litigation, identifying each state's approach to fault grounds, the impact of fault on the alimony award, and the impact of fault on the distribution of marital property.

Divorce-jurisdiction and divorce-appeals counsel can advise on the specific fault grounds recognized by the applicable state, assess whether the applicable state's statute of limitations or statutory bar defenses such as condonation, connivance, or recrimination apply to the specific fault ground, and develop the legal strategy for managing the state-specific procedural and evidentiary requirements applicable to the fault ground.

The proof of adultery as a fault ground for divorce in most states requires the petitioner to establish both opportunity, meaning that the respondent and a third party had the private opportunity to engage in sexual conduct, and inclination, meaning that the respondent demonstrated a disposition toward sexual contact with that third party through romantic communications, shared hotel stays, or other circumstantial evidence, and while direct evidence is more persuasive, the overwhelming majority of adultery cases are proven by circumstantial evidence. Cheating-during-divorce and alimony-lawsuit counsel can advise on the specific evidentiary standards applicable to the proof of adultery as a fault ground for divorce, assess whether the available direct and circumstantial evidence is sufficient to establish the opportunity and inclination elements required to prove adultery by clear and convincing evidence, and develop the evidence presentation strategy for establishing adultery most persuasively at trial.

Extreme cruelty or inhuman treatment as a fault ground for divorce encompasses both physical and mental abuse, and courts in most states have held that a single act of physical violence is sufficient to establish cruelty if the act endangered the petitioner's health or safety, while establishing mental cruelty typically requires proof of a pattern of conduct that systematically destroyed the petitioner's mental health, self-esteem, or sense of safety. Domestic-violence-lawsuit and domestic-Vvolence counsel can advise on the specific legal standards applicable to the proof of extreme cruelty or inhuman treatment as a fault ground for divorce, assess whether the specific acts alleged by the petitioner satisfy the legal threshold for cruelty in the applicable state, and develop the evidence presentation strategy for establishing the pattern of abusive conduct most persuasively before the court.

The most reliable categories of evidence in a fault-based divorce proceeding are those obtained through lawful means and capable of authentication as accurate representations of the events they purport to record, and the petitioner who relies on evidence obtained through the unauthorized interception of electronic communications or the unauthorized access to the respondent's private accounts faces the dual risk of the evidence being excluded and of criminal liability under the applicable federal and state electronic surveillance laws. Civil-litigation-evidence and divorce-filing-process counsel can advise on the specific categories of evidence that are most legally persuasive in a fault-based divorce proceeding, assess whether the evidence collected by the petitioner was obtained by lawful means and satisfies the applicable authentication and admissibility requirements, and develop the evidence organization and presentation strategy for the fault divorce trial.

Expert testimony is most valuable in a fault-based divorce proceeding when it bridges the gap between the factual evidence presented by lay witnesses and the legal conclusion the petitioner is asking the court to draw, and the most common uses of expert testimony in fault divorce cases are the testimony of a forensic psychologist to establish that the respondent's conduct constitutes extreme cruelty, the testimony of a forensic accountant to establish the financial harm caused by the respondent's marital waste, and the testimony of a medical expert to document physical injuries caused by acts of cruelty. Family-law-litigation and custody-evaluation counsel can advise on the specific types of expert testimony that are most persuasive in a fault-based divorce proceeding, assess whether the testimony of a forensic psychologist, a financial forensics expert, or a medical expert would materially strengthen the petitioner's fault case, and develop the expert witness strategy for the fault divorce trial.

The financial impact of a successful fault finding can be substantial, because in states like Virginia the proven adultery of the at-fault spouse can result in a complete bar to the at-fault spouse's claim for alimony, while in states like Texas and New York the fault finding can shift the property division from a roughly equal distribution to a significantly unequal distribution that awards a larger share of the marital estate to the innocent spouse. Sue-for-alimony and property-division-on-divorce counsel can advise on the specific legal standards applicable to the determination of alimony and property division in a state that considers marital fault, assess whether the available evidence of the respondent's marital misconduct is sufficient to materially affect the court's alimony and property division award, and develop the litigation strategy for maximizing the petitioner's financial recovery.

The documented fault evidence that a petitioner has accumulated during the divorce investigation serves a dual purpose, because it can be presented to the court at trial if the case is litigated, and it can be used as leverage in settlement negotiations to induce the respondent to accept terms that are more favorable to the petitioner, making the decision of when and how aggressively to deploy the fault evidence one of the most strategically important choices in the fault divorce process. Property-division-agreement and custody-dispute counsel can advise on the strategic use of documented fault evidence in settlement negotiations, assess whether the strength of the fault evidence provides meaningful leverage in negotiating alimony, property division, and custody, and develop the negotiation strategy for achieving the most favorable settlement while preserving the option to litigate if negotiations fail.