Putting the Fault Back in No-Fault Divorce
Years ago Maryland and Virginia added no-fault divorce grounds to the traditional fault grounds. DC has moved completely to no fault grounds. However, even if you file on no-fault grounds, marital misconduct still comes into play in all three jurisdictions.
Alimony. In each jurisdiction, the law provides a list of factors the court must court must consider in determining alimony. In Maryland and DC, one of the factors is circumstances surrounding the estrangement of the parties. In Virginia, adultery can prevent a spouse from receiving alimony unless the court finds that would create a manifest injustice.
Property. In determining how marital property is to be equitably distributed, each jurisdiction has another list of factors the court must consider. In Maryland, there is a catch all provision that includes any other factors that the court considers appropriate. In Virginia, one factor is circumstances contributing to the dissolution of marriage. In DC, it is circumstances contributing to the estrangement.
Custody. Marital misconduct does not necessarily make you a bad parent. The test is best interest of the children. But the parties think it is important that the judge know what a scoundrel the other parent is, especially if the other parent is slinging mud, too.
As a result, the parties spend 90% of their time in discovery and trial trying to prove fault. While most of the judges I’ve talked to say it affects their decision by 10% or less.