January is Divorce Month

Family law attorneys routinely advise their clients to be careful what they do, say and post online during their divorce. It can harm their case, cost them financially and impact their child custody rights. When couples are involved in a fault-based divorce, the so-called "innocent" spouse's behavior can have a particular impact on the divorce.

Why Choose a Fault-Based Divorce?

Since no-fault divorce was first legalized in California in 1969, it's become increasingly prevalent throughout the country. However, some states still allow fault-based divorce. Common grounds include adultery, neglect, abandonment and cruelty. Of course, evidence needs to be provided to substantiate a spouse's claims.

A spouse doesn't necessarily gain more in a divorce settlement by opting for a fault-based divorce unless one spouse's behavior impacted him or her financially. It varies by judge and jurisdiction. However, some people choose that over a no-fault divorce because, depending on the state, it can speed up the process by eliminating a mandatory separation period. Some people, particularly those in the public eye, may want people to know about their spouse's bad behavior.

Defenses Against a Fault-Based Divorce

There are defenses against a fault divorce filing. One is recrimination, which means that the person filing the divorce is guilty of the same activity as his or her spouse. Adultery is a common basis for recrimination defenses.

That was the issue recently in a New Hampshire couple's divorce that made it all the way to that state's Supreme Court. Both spouses filed for divorce on different grounds, but the husband filed for divorce on the grounds of adultery. However, when he began a relationship with someone after the separation, his wife argued in court that he no longer had those grounds. The high court ruled that even though his activities occurred after the couple separated, they constituted adultery and therefore recrimination. They ended up with a no-fault divorce.

Post-Separation Relationships Can Bring Complications

Some states have stricter laws than others when it comes to adultery -- both while a couple is together and after they've separated. If you and your spouse have separated, it's important to understand the potential ramifications of beginning a new relationship or engaging in any kind of sexual activity.

This is true whether you're contemplating a no-fault divorce or a fault-based one. Early legal guidance from an experienced family law attorney, even if you're not sure whether the separation will culminate in divorce, can help you prevent unnecessary complications later on.