At Fault Vs. No Fault

I see a lot of discussion about this over on Chump Lady. Somebody will comment about how they live in a no fault state so they’re screwed. Or a comment will be made about how they wish they lived in an at fault state.

Before I go any further I want to make this very clear: I AM NOT A LAWYER. THIS IS NOT LEGAL ADVICE. This is merely what I have learned while divorcing in an at fault state. Your mileage may vary. Just because this happened in this particular way doesn’t mean it will work this way for you.

It doesn’t matter. At fault divorce simply means you can divorce your spouse based upon a specific reason. It does not mean the judge rules that you get everything because you can prove your spouse did something that would qualify as grounds for a fault divorce.  All those people who end up with sweetheart settlement deals? Generally speaking, it’s because the cheating spouse agreed to it. More than likely, they didn’t want their dirty laundry aired or they didn’t want the mistress/lover deposed. They were more concerned with their reputation and doing image management. It was not because the judge said, “Your spouse is a lying cheater! You get everything!”

When I first spoke to a lawyer I was told that divorcing based upon adultery in Virginia really only benefitted the person who would be paying alimony if they were the injured party. In that case, they wouldn’t have to pay the cheating spouse. But it didn’t mean the cheater would be left with nothing. Property would still be split pretty much 50/50 unless there were some extreme circumstances.

Additionally, at least in Virginia, at fault divorces are very hard to prove. CF was living with Harley and they shared a joint checking account and my attorney still wasn’t sure she would have enough to go ahead with a divorce based upon adultery.

Again, I AM NOT A LAWYER AND I ONLY HAVE EXPERIENCE WITH DIVORCE IN ONE MEASLY STATE (WHICH IS NOT EVEN A STATE; IT’S A COMMONWEALTH).

Here’s the good news though. Even though I didn’t ask for a divorce based upon adultery my attorney assured me we could still bring up his bad behavior and the judge could still use that in determining his opinion.

Guess what? He definitely did. CF’s affair with Harley was a major reason his income was imputed instead of using what he actually made. He made repeated reference to CF’s affair with Harley in his opinion.

  • CF continued to talk about needing to be closer to his mother, brother, and sister; the judge noted he never once mentioned the girlfriend with whom he immediately moved in.
  • The judge noted CF had been driving 6 hours each way to see Harley each weekend with the exception of three.
  • My expenses seemed reasonable and in line with what we had spent before when we were married while his were deemed to be focused on his girlfriend and her kids. In fact, he quite bluntly said it was apparent he could have been paying me more in support instead of expending his efforts and monies on the girlfriend and her kids. In other words, despite CF crying poor and talking about how he could barely pay his bills and pay me, the judge didn’t buy it and pointed out that if he wasn’t so busy giving his girlfriend every dime he made he might be able to pay me what he had been ordered to pay.
  • This was probably the second best thing the judge wrote: This Court determines that the Husband’s mental health issues were something that he and the family were able to cope with, and that he was able to perform well at work. His exit interview documents are noteworthy in this regard. However, what changed, and what suddenly seemed to necessitate quitting his great job and heading to Kentucky, was his affair with Harley Buttface. When Husband left Whoreville for Kentucky, he immediately moved in with his girlfriend and her children. Adding the stressor of an affair to his personal situation, effectively causing the breakup of his marriage, was a self-inflicted wound that has to be factored in here. Until his involvement with another woman, he was able to find a way to be successful with his employment, working around any mental health issues he had.
  • The best example that this kind of stuff can matter even when you’re not suing for divorce on the grounds of adultery was this: This is how Husband moved up in the industry, being transferred from place to place, with each stop an opportunity to run a bigger and better plant, and make more money. This is exactly what he did. Now, Husband insists on staying in Kentucky, where he can only produce half of the $200,000 annual salary he was able to earn elsewhere for himself and his family. Accordingly, his insistence on staying in Kentucky keeps him from making approximately $200,000 per year, which he is perfectly capable of doing. He has had other employers call and put out feelers but he refuses to discuss employment outside of Kentucky. He agrees that his salary is all he can earn in Kentucky at this small plant, and he would have to relocate to earn more money.

He admits he was in a relationship with Harley when he resigned his job to go to Kentucky. He admits he went there and moved in with her. He admits that for months he had been driving to Kentucky to spend weekends with her. He admits he rents a nice home with a pool, club house, and four bedrooms, with Harley and her two children.

Husband clearly can earn more salary if he is willing to relocate, which is a norm in his industry, and under the facts of this case, finding the girlfriend to be a major reason for staying in Kentucky, the court will impute income to him of $170,000.00 per year.

Bam! Again- I did not file for divorce based upon adultery. I was told I did not have enough proof and it is extremely difficult to get a divorce based on those grounds. He got his ass handed to him despite a no fault divorce. Because I could bring up his bad behavior despite the fact I hadn’t filed for divorce based on adultery.

Here’s another key fact: We did negotiate a property settlement, which was basically his 401k and pension, plus our marital debt. He took on approximately 80% of the debt (on paper) and in exchange I only took 40% of the 401k. I did not walk away with his entire 401k while he was left with every single bill. Furthermore, I agreed to this because my attorney told me that the judge probably wouldn’t rule much differently (and if we hadn’t settled the trial would have gone on for a second day- at $250/hour it wasn’t worth fighting for.).

One more time: I AM NOT A LAWYER AND THIS IS NOT LEGAL ADVICE! Your state/city/county may be totally different. Hell, when the mobster consulted a lawyer she told him that in their county the judges rarely grant alimony. In my city, 3 hours away, alimony was regularly granted. However, it grates on my nerves every time I hear someone talk about how they wish they were in an at-fault state as though they would get everything. Similarly, I hate when people think that just because they’re in a no fault state that none of the shitty behavior can be brought up. I brought it up and the judge listened.

While I’m on a roll I’ll go ahead and leave you with this last piece of advice. Not legal advice. Just advice.

It never hurts to ask. I read one time that when men seek 50/50 custody they receive it 75% of the time. The problem is most men are told they’ll never get it and they’re discouraged from asking for it… because they’ll never get it. Yet, when they do ask for it the statistics show they do, in fact, get it.

Both lawyers I talked to in the beginning told me that judges were very leery of granting sole legal custody to one parent. They hated taking it away and almost always granted joint legal. Granted, CF agreed to my terms and at the point we were going to trial my new lawyer didn’t even question me having sole physical and legal custody. But even back then I continued to push forward. I wasn’t going to be at the mercy of a fuckwit, especially one who couldn’t bother to parent and who had moved 6 hours away from his kids. In the end I got full legal and physical custody, and I believe if I had had to take the matter to court the judge would have granted it to me.

Finally, my lawyer told me I could ask for legal fees to be paid for by CF, and that I would probably be given something but I wouldn’t get all of it. Granted, the approximately $26,000 she submitted in court as legal fees grew another $10-$11,000, but when the judgement was rendered CF was ordered to pay me $25,000 in reimbursement. After we got the opinion back my lawyer was incredulous. She told me it was unheard of to be awarded that much in legal fees.

Unheard of, folks, and I would be $25,000 poorer if I hadn’t insisted on asking.

One thought on “At Fault Vs. No Fault

  1. I had a lot to say about the whole idea of ‘the wage earner owed the non wage earner’ on CL, because… I’m the earner. And the chump. And frankly, in Canada, they have a lot of rules, and a ton of leeway. Judges can award as much as something like 30 percent of your earnings as support for the length of what your marriage was. I could be on the hook for supporting his ass for 15 years even though he spent a decade (at least, probably all of it) cheating on me. Or a judge could award nothing (only common if that’s the proposed settlement from both parties and there’s proof that the party who is ‘owed’ will really be ok and isn’t doing it to get away.) but the law is there to protect people who are discarded, who are left after years of being the stay at home, or sacrificing their career advancement to support their family. How can I be upset at a law that takes care of so many other chumps? I can’t. I’m not on that path right now, I just live in perpetual self imposed limbo. But I get the side of giving the judge tha ability to make me pay. I’m really happy you got what you got. Your ex is a turd.

    Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s