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Posted on September 20, 2021 by Will Reingold

Too often, infidelity plays a role in the demise of a marriage.  The spouse who was cheated on will likely (and understandably) be angry.  But can that infidelity be used against the cheating spouse during your divorce?  In Washington, the answer is no.

Washington is a “no-fault” State, meaning that the trial judge will not consider “marital misconduct” when you divorce.  This may seem strange, and possibly unfair.  Why shouldn’t he or she suffer some judicial repercussions for this act of betrayal?  This question may be compounded when viewing how other States may approach accusations of infidelity—e.g., in North Carolina, a husband was recently awarded millions of dollars after suing his wife’s lover for their 16-month affair.  But, to be clear, every State has some form of no-fault divorce.

So, why no fault?  There are actually some good policy reasons.  Here are just a few:

1. Not having to litigate the issue of fault means that the other spouse cannot prevent the divorce from happening. Think about it—if you have to prove fault to get a divorce, and if the other spouse does not want to get divorced, then they could keep you from divorcing them by convincing a judge that there was insufficient fault to grant a divorce.  The other spouse could argue that “there’s no fault, so there’s no legal basis for why we should get divorced.”  In that sense, the no-fault position liberalized the idea of divorce; indeed, one of the major reasons States began passing no-fault laws was so that women trapped in unhappy marriages could freely divorce their husband without having to prove fault.
2. Arguing over fault is antithetical to bedrock marital principles. Washington is a “Community Property” State.  Succinctly, this means that all property and all debt accumulated over the course of a marriage—including income of both spouses—is presumed “community property” belonging to both spouses, and the trial judge must divide the property in a “just and equitable” manner.  This notion is grounded in the idea that marriage is akin to a partnership; and, as partners, both spouses share in the property acquired during the marriage.  Adding fault as a factor throws a wrench into this equation when it comes to allocating property upon divorce.  Imagine the following argument: “I was only 30% at fault for the marriage failing, but she was 70% at fault; therefore, I should receive 70% of the property.”  We do not want those types of decisions being made, especially given that “fault” is subjective by its very nature.
3. Doing away with the issue of fault saves time and money. It also can keep tensions at bay, which undeniably is in the best interests of the children.  Many divorces can be expensive and drawn out sagas, and this family law litigation is almost always emotionally charged.  Arguing over fault will only intensify an already-difficult case.  And again, you would have to prove fault before the judge could even consider issues of property division, spousal support (alimony), child support, etc.

If you have questions about what constitutes marital misconduct – or what the trial judge may or may not consider during your divorce – you should contact an attorney to get the lay of the land. The Family Law Practice Group at Lasher is available to assist you.

If you have any questions, please contact Will Reingold.