Divorce is an emotionally charged time, and the emotions are often especially heightened when one or both spouses has engaged in what the law (or the other party) may find to be inappropriate conduct.
Most jurisdictions have "no-fault" divorce grounds, such as separation for a required period of time, or even “mutual consent,” in which the parties simply agree to get divorced and agree on the terms of their settlement.
But fault-based grounds for divorce continue to exist in many jurisdictions. These grounds include conduct like adultery, desertion, and cruelty, among others. In those instances, the facts that gave rise to the ground for divorce may impact other areas of the case, such as property distribution or spousal support.
It is very common for a party to feel that if the other spouse or partner engaged in inappropriate behavior, the scales should be titled and the culpable party should get less of the property or less of the cash flow. The law is rarely that black and white.
In most jurisdictions, the law considers “the cause of the estrangement” or similar concepts, as one factor in deciding property or support issues. But it is only one factor in a lengthy list.
As a general rule, the cause of the estrangement is a consideration for the court, but not an overwhelming one. And keep in mind that the “cause of the estrangement” may not be the same as the ground for divorce. For example, adultery may be a ground for divorce. It may also be the cause of the estrangement. However, it may also be a symptom of a troubled marriage. We often see the spouse who committed adultery argue that it wasn’t the adultery that broke up the marriage, but that the adultery was an indication of an already broken marriage.
And while courts are required to receive evidence of fault and bad behavior, most judges would rather focus on the finances and the children, and the laundry list of other factors that must be considered under the law.
A divorce court is a place where the system seeks to do what is equitable. The parties need to be careful not to confuse equity with punishment or retribution.