What happens when both parties are "at-fault" in a divorce?

During the legal process of a “fault divorce” case, if both parties are found to be at fault, it will be up to the jurisdiction of the court to decide how assets may be split and which of the parties should be legally considered the one officially at fault. Because the decision will be made based on which spouse was the “least at fault” in the issues leading to the separation, this is a doctrine referred to as “comparative rectitude” or “least fault divorce.”

Understanding Fault and No Fault Divorces

In the majority of states within the US, those couples who choose to file for divorce can choose to file either “fault” or “no-fault” divorces. While a no-fault divorce indicates that both parties agree to the split, a fault divorce is typically initiated by one of the parties and lays the blame for the separation on the other.
The filing spouse is claiming the split is legally the fault of the other party. This can result in alimony payments or the “injured” party may receive more of the property during the division of assets. Alimony amounts, if any, and asset division will depend on the nature of the fault and the particular situation.

Least Fault Divorces

Least fault divorces are fairly uncommon for two reasons:

1. Fault divorces, which were previously required by law, are fading away. Only fifteen states in the U.S. still offer fault divorces as an option.
2. Least fault situations are subjective.

While any divorce case where fault is found is going to involve some decisions made by the judge in terms of who was responsible for what (and who should get what), a least fault divorce is a much more complex situation and a difficult judgment call to make. The shaky ground behind the decision has made least fault divorces uncommon and unpopular among both parties in question and the court systems.

Getting Help

If you are considering filing for divorce, especially a fault divorce, you should strongly consider hiring an experienced legel family law attorney to help guide you through this often grueling process.