It used to be the case that courts would not grant a divorce unless one spouse could demonstrate that the other spouse was at fault for destroying the marriage. The “grounds” for getting a divorce varied by state, but often included things like infidelity, abandonment, and extreme cruelty.
Over time, every state eventually adopted a no-fault divorce option allowing couples to file for divorce simply by asserting that the marriage was irretrievably broken. But in cases where one spouse was at fault, what impact, if any, would it have on the case?
Fault-based divorce is no longer an option
Many states, including Wisconsin, have done away with fault-based divorce entirely. This means that filing no-fault is the only option. No-fault divorce is generally considered preferable because it doesn’t require alleging and proving that one spouse was at fault, which would make the process far more adversarial. It could also create a difficult burden of proof for the spouse making the allegations, and it would risk exposing both spouses (and their children) to public embarrassment.
Could one spouse’s fault impact a divorce or custody ruling?
If one spouse has acted in a way that would previously have been grounds for divorce, those actions could – in certain circumstances – impact the way a judge rules on some aspects of the divorce or child custody. If a husband had been convicted of perpetrating domestic violence against his wife and children, for instance, that could certainly cause a judge to deny or greatly restrict his custody rights.
Now, consider the example of an extramarital affair. The affair itself would not (and could not) be a factor influencing property division or custody. However, a judge could potentially alter property division if the cheating spouse had been spending significant marital assets in pursuit of the affair. The infidelity could also influence custody decisions if there was evidence that the cheating spouse’s new relationship was somehow harmful to the children.
It is important to note that the examples above are hypothetical, and each judge would make determinations in preponderance of all available evidence in a given case.
An experienced attorney can explain all of your legal options
Family law is complex, and context is very important. For these and other reasons, you should avoid making assumptions or jumping to conclusions before receiving professional guidance. Please consult with an experienced family law attorney to fully understand your divorce and custody options.