What is the reasoning behind fault divorce?
At one time, the rationale behind fault include the deterrence thought to be in pain and suffering. Moralists believed that this punishment would lessen the incidence of divorce. Most observers today do not feel that this is the case, however. Fault divorce represented a consensus that society had an interest in preventing the dissolution of marriages for any but the very best of reasons. The consensus began to unwind in the 1960s.
Courts now view the marriage as an economic unit, and in general courts are more considered about economic misconduct -- such as the dissipation of marital assets -- than they are about marital misconduct -- such as infidelity.
Many divorcing spouses believe that charging fault means that a judge will punish the other party with eye-popping alimony and/or a division of marital property that impoverishes the offender. For example, if the husband is found at fault of cruelty, a court would traditionally have made him pay a large amount of alimony to punish him for his fault. If, on the other hand, the wife was at fault, by having an affair, then court would punish her by reducing her alimony payment or by giving her less marital property than she would have received otherwise.
Many a spouse is disappointed when courts seem indifferent to the reprehensible behavior and outrageous conduct of the other spouse.
The wife who expects a judge to brand her adulterous husband with a scarlet letter will be disappointed, particularly since the financial and emotional costs to herself will undoubtedly be much higher than a less punitive escape from a troubled marriage.
Even if fault is alleged, most states and courts will not tie the fault to either the property disposition or spousal support, and indeed, some states have statutes forbidding any linking of the fault to the property or spousal support disposition.
In the 17 no-fault states, fault is completely irrelevant to all aspects of a divorce. And some states are mixed: fault is not grounds for a divorce, but conduct during the marriage -- including bad behavior -- can be considered in setting support and dividing marital property. While some states (Alabama, Connecticut, the District of Columbia, Florida, Georgia, Idaho, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming) statutorily require the court to consider conduct during the marriage in connection with the award of alimony, the court at the same time is prohibited from considering fault in connection with the distribution of marital or community property. Consideration means what a judge says it means, and most courts in these jurisdictions place little weight on fault for anything.