Clients going through a divorce usually come into their attorney’s office very focused on fault – the other spouse was a habitual cheater and left them for someone else, treated them poorly, could never keep a job, spent money excessively, etc. There are many character flaws and behaviors that can cause deep unhappiness and dysfunction in a marriage and often lead to divorce. However, it is a misconception that a court will delve into all of the reasons behind the divorce and consider how a party was wronged in determining division of assets and debt. The reality is there are very few circumstances where a court will consider fault in a divorce case. Stories where one party claims to have taken the other “to the cleaners”, because they had affairs or behaved in a nefarious way are typically embellished.
One of these limited situations where fault is considered is in regard to alimony. In Georgia, adultery is a bar to receiving alimony, but only if the adultery is what caused separation. Clements v. Clements, 255 Ga. 714 (1986). Another situation where fault or misconduct is considered is in custody determinations. That said, the only facts the judge considers are ones that clearly affect the children. For example, if a husband had 20 affairs while on business trips but the children were never exposed to them, then this is not a relevant fact to a custody determination. However, if the husband had affairs with 20 different women at the marital residence while the wife was out of town on business trips, and the children were exposed to these various women coming in and out of the home, this could affect the outcome of the case in regard to custody and visitation.
It can be a tough pill to swallow to realize that the reasons behind significant marital struggle won’t be considered during the divorce. That said, if courts were to dig in to all of the reasons behind each individual divorce, our already severely overloaded court systems would be even more taxed, and a typical divorce would then take years to resolve. This would just drag out the misery of the unhappy marriage by focusing on these negative aspects of the past. Instead, I encourage divorcing individuals to focus on letting go of hurt and anger from the marriage and focus on getting the results needed in the divorce to reach the quickest resolution possible so they can move on to create a happier life.