Fault Grounds Reconsidered

All fault grounds are ways the legal system through its courts comes to terms with a failed marriage, and this means that the law must reach inside a very intimate human relationship. This penetration puts extraordinary demands on courts and a judge. Moreover, fault divorce lends to perjury or fakery as well as conclusions drawn from dubious circumstantial evidence about threats and other actions, not to mention he says-she says testimony. One could claim cruelty, which would then be difficult to disprove - the "proving a negative" problem.

Even when true, most fault grounds often happen when hopes and dreams go astray, and such legalistic incursions in the lives of flawed mortals are not the arenas where litigation is at its best. Adultery and extreme cruelty or cruel and inhuman treatment are symptoms of marriages that are troubled. Sexual desertion certainly is an indication of a marriage gone sour. Habitual drunkenness and drug addiction are really medical problems where a person needs help. By definition, these human problems do not yield well to legal intervention.

All fault grounds can, of course, be used to end a marriage in jurisdictions where they are the law, but all states now have less legally difficult, less expensive, less emotionally damaging ways to do it than a fight-to-the-death fault divorce.

Adultery, cruelty, abandonment, imprisonment, insanity, and drug or alcohol addiction are considered the offenses that make up grounds, as we have just seen. There are a few other grounds that are still found in some states: bigamy, impotence, child abuse, and "crimes against nature." It is up to the individual state legislatures and the courts to determine just what "crimes against nature" are.

People use fault divorce when they can end a marriage in easier ways because sometimes there is a strategic advantage in fault. In the old days, when spouses came to the end of the road, one spouse could hold the other’s feet in the fire and make it so difficult for him to divorce her that she effectively trapped him in a marriage they both knew was over. This is Pyrrhic victory for sure, but people did it.

Sometimes people go for fault divorce because it raises the bar. In general, one divorce strategy is the determination in which party’s interest is it to remain married longer. The party who can remain married longest has what lawyer’s call at leverage factor over the other party. If one spouse wants to leave his or her spouse for another, his or her spouse can make this a weapon against his or her spouse with a fault divorce charging adultery. And he or she could drag it easily by making bankrupting demands.

Today, no-fault has changed this. Even in a fault state when one spouse has filed or counterfiled for divorce, "provided that the allegations setting forth the cause for action are true, that spouse will succeed" in the divorce. If, for example, a spouse has committed adultery, he or she cannot counterfile for divorce claiming his or her adultery, but he or she can counterfile on grounds of irreconcilable differences and get a divorce regardless of the fact that his or her spouse is blameless.

In short, even in so-called fault jurisdictions, one party cannot prevent the other from divorcing him or her as long as "requisite statutory grounds for divorce are alleged and are provable by a preponderance of evidence," which means a fraction of percent more likely than not.

The advantages to making a divorce adversarial, i.e., using fault when no-fault might be used, should be weighed carefully.

Alleging fault may make one spouse, who has "the goods" on the other and his or her adultery, have energy for a battle and the moral vindication that comes with winning. By the time the war is over, the landscape of the marriage looks like the Western Front at the end of the World War I, but there is no doubt the marriage is over.

The disadvantages, to continue the analogy of the World War I, is that when spouse’s become belligerents, fighting extended legal battles, they move themselves closer to bankruptcy, end the war with lasting hatred, and like the parties of war, sign a peace treaty imposed by a court that the loser is less likely to honor.

One veteran Pennsylvania divorce lawyer likens fault divorce to trench warfare fought with hand grenades and hatchets -- two weapons which when used are very likely to inflict injury on the person who uses them or innocent bystanders, who often happen to be children.

Running up the battle flag of fault, one spouse may threaten the other with financial emasculation and that spouse may promise destitution and both may threaten the other with the children; but by the last shot is fired, the "loser" will be crushed and the "winner" finds victory leaves the taste of ashes. An adversarial divorce can make of anger and hurt that lasts a lifetime.

Very often in failed marriages, both spouses are at fault. Rufus has an affair and Rhonda retaliates with one of her own. Yes, assuming the adultery is provable, each has now given the other a fault ground for divorce.

Under a line of reasoning called the doctrine of comparative rectitude the judge will grant the divorce to the spouse who is least at fault, if both spouses have shown grounds for divorce. In this routine of thinking, therefore, minus one plus minus one came out some other way but minus two.

Interestingly enough, at one time fault by both parties essentially "cancelled out" the other. That is, if both the husband and the wife had affairs, neither of them could claim the fault of the other in order to get a divorce. In that routine minus one plus minus one equalled zero. So Rufus and Rhonda would be stuck together in the marriage that neither wanted. (At the antecedent of that line of reasoning, however, is probably the moralism at the bedrock of fault divorce.) Anyway, this result was less than satisfactory and really makes very little sense.

The trouble with the doctrine of comparative rectitude is that it leads to a judge weighing the claims of both spouses, who are both of them essentially saying, "What do you mean, me? You’re the one!"

Yes, this will require judicial weighing, but so much of divorce law requires that anyway. And experienced judges have heard it all. The doctrine of comparative rectitude leads to absurd situations, such as deciding whether three incidents of adultery is worse than two, or whether drug addiction is worse than mental cruelty. Comparative rectitude almost adds a metaphysical dimension to divorce.

Comparative rectitude may be the reason some judges say that in some cases, a fair decision in contested divorces is one that make both parties unhappy.

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