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The Divorce Encyclopedia
Recrimination


Term Definition Recrimination - the counterclaim, for example, when both parties in a divorce allege adultery.
Application in Divorce Even in cases where a divorce ends in litigation, recrimination enters divorce actions less and less. Whether or not adultery is a factor in the divorce, legal advice should be sought before charging a spouse with adultery. Given the direction of divorce law, usually it is not worth the trouble and it can make litigation, which is painful and expensive, even more so. Before no-fault divorce, recrimination worked as a fault counterclaim defense.

When it is used, very often recrimination takes the form of an counter-charge of adultery or cruelty. Thus, two spouses going to battle stations end up charging each other with the same allegation as part of legal jockeying for position. In the case of adultery, recrimination could also include the naming of a co-respondent.

Under the doctrine of recrimination, if the conduct of both spouses gives both grounds for divorce, then neither is entitled to relief. Recrimination is a showing by the defendant as a bar to the plaintiff’s cause for divorce. In theory, for example, this means that Rufus, the defendant who is accused of adultery by Rhonda, makes a counterclaim that she is also guilty of adultery; then neither of them is entitled to a divorce. As a bar to divorce, "the complainant’s misconduct need not be of equal degree with the defendant but must be of the same general character."

Even if Rufus was seeing Rita and Rhonda had a fling with Ronald, most divorce lawyers advise against recrimination. Recrimination is like throwing gasoline of a fire. In some cases, there may be a tactical advantage, but in the main most divorce lawyers advise against allegations of adultery even when they are true. It is a weapon that makes a lot of noise, but one with which a person can easily shoot himself or herself in the foot.

In fact, recrimination has been abolished as a defense in many states since the enactment of no-fault divorce.

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