Recrimination is a defense in divorce cases where one spouse proves the other is also guilty of destroying the marriage. Some jurisdictions no longer recognize it, and no-fault divorces are becoming more popular. Being found guilty can affect asset division, spousal support, and child custody. Recrimination assesses each party’s wrongdoing, and if both are found guilty, divorce is not granted. Couples can avoid recrimination by filing a no-fault divorce.
Recrimination is a defense used in some divorce cases. Its purpose is to prevent a person from being found guilty of destroying a marriage by proving that the other spouse is also guilty. When this happens the two individuals are not divorced. Some jurisdictions have stopped recognizing the use of recrimination. While it’s still enforceable, if the jurisdiction allows no-fault divorces, it can easily be avoided.
People may mistakenly think that being found guilty during a divorce doesn’t make any difference because the couple is separating anyway. Guilt, however, makes a big difference because it often determines what assets a person will receive, who will be liable to pay spousal support, and who will receive custody of any joint children. With so much at stake, if one spouse is accused, she might as well want to make an accusation in return.
Think of the process along the same lines as a counterclaim in other types of civil cases. If Josh breaks Paul’s window, Paul can sue Josh for damages. However, if Paul broke Josh’s door, Josh can fight back. If the damages are equal to or close to it, there are chances that a judge may refuse to order action to be taken on either claim since one essentially cancels the other.
When recrimination is used in divorce cases, instead of comparing financial value, the extent of each party’s wrongdoing is assessed. One spouse, Melissa says, will claim Shawn had an affair and she wants a divorce for adultery. Shawn could argue that he has had to ask the police to remove Melissa from her home on several occasions because she became violent. Shawn may want to argue that Melissa is guilty of being abusive. If both spouses are found to be guilty, recrimination occurs.
This does not mean, however, that the marriage will be dissolved. It essentially means that the two individuals are both transgressors and deserving of each other. Therefore, divorce is not granted and they must remain married.
No-fault divorces are becoming increasingly popular, eliminating the need to discuss what a person has done. In some jurisdictions, recrimination is no longer used. In jurisdictions where this defense still applies, if both spouses know they have made mistakes in the marriage, they can simply avoid all the complications that recrimination would cause by filing a no-fault divorce.
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