Punishment for marital fault
|What are the penalties the family court can impose on a spouse who commits adultery or other marital fault?|
|It is very common for me to consult with an emotionally distraught person whose spouse has committed marital fault. The most common form being adultery.For obvious reasons, they want their spouses punished. At this point, I must convey the difficult truth: There is no punishment for marital fault by the family court. But what about permanent alimony, 60% of all marital assets, etc….|
Nope, the law is clear: Our courts “have consistently held that fault does not justify a severe penalty” Doe v. Doe, 370 S.C. 206, 215 (S.C. Ct. App. 2006). Then what is the reasoning behind permitting a divorce based on fault if it is not to penalize the offending party?
Think more in terms of a civil action, which is what a Family Court case is. When a person is involved in a car accident and they are not at fault, the “at fault” driver is legally obligated to pay money to make things right. This is called paying “damages”. It’s the same in Family Court. When a person is found to be at fault in causing the break up of the marriage, they must pay “damages” to the non offending spouse, if damages can be proven.
The key is to accurately determine the extent of the damages.
Is the innocent spouse now going to be short on cash each month? Then alimony is an issue. Are there ongoing expenses that the parties had intended to share, such as college costs for the kids, health insurance, memberships and dues, maintenance on a large home, weddings, graduation parties, etc… Then additional cash from marital assets will likely be apportioned to the innocent spouse to cover these expenses.
I recently had case involving a couple with 8 million dollar estate and 3 kids in college and graduate school. My client earned $100,000 per year from her job and her husband had committed adultery which caused the break up of the marriage. The negotiation simply involved reaching a number, in excess of a 50-50 division, which would account for the children’s college costs, health care, transportation, housing, etc… The number we arrived at was an additional $400,000.
It is important for therapeutic community to understand this. These days it seems that if a person wants something and they believe that they should have it then it must be factually true. Attorneys need the help of therapists who are treating our clients to separate fact from fiction. A legally fair agreement is almost always not what either side wants, but what is legally fair and what someone wants or believes that they should have are two entirely separate things.
Be well and stay safe,