Forward Thinking Family Law Since 1994

Does Fault Behavior Impact a Mediated or Collaborative Practice Case?

Many people know at the beginning of their divorce that they do not wish to resort to judicial decision-making or litigation.  The want to use mediation or collaborative practice to resolve their family disputes.  In such cases, does fault still matter?

To many people it does.  The spouse who feels like the victim is going to have to work through those emotions before a settlement is possible.  Frequently, both spouses believe that they are the victim.  So it is still best to talk with your attorney about the circumstances of the case.

Extra-marital relationships are frequent reasons that one spouse wants to leave the marriage.  Sometimes, the affair makes him/her realize that they are unhappy in the marriage. Sometimes, the excitement of the new relationship makes them believe that they would be happier outside the marriage.  Some people do not have the courage to leave the marriage without having the security of another partner waiting for them.  Regardless of the circumstances, the other spouse is going to feel hurt, betrayed and angry.  In order for the attorney and the mediator to be helpful in negotiating such a case, they will need to know what happened.

Sometimes, it is important to allow the spouse who has not strayed from the marriage to vent his/her feelings.  It may also be helpful for the spouse who engaged in the affair to apologize to the other spouse.  In such cases, having each spouse work with a divorce coach in the collaborative model can be very helpful in getting through the issues and moving forward.

In some cases, the “victim spouse” believes that publicly shaming the straying spouse will help them feel better.  Some will involve their children in the shaming.   Both of these tactics are unlikely to bring relief.  They are also not likely to result in a more favorable settlement.  Talk with your attorney before you take such measures.

In cases where assets have been dissipated due to gambling, drugs, sex or other addictions, it is necessary to find out how much has been spent or lost.  Whether the case is litigated, mediated or settled collaboratively, it will probably be necessary to adjust the marital estate for money or property that was lost due to addictive behaviors.  It may be particularly helpful in mediated or collaborative cases for the spouse suffering from the addictive behavior to seek treatment and to show an appreciation for the impact the behavior has had on the family.

Domestic violence in the marriage is another basis for fault. Depending on the form of the violence, these cases can be mediated or collaborated.  Additional safeguards will be necessary for the survivor spouse to feel safe in the process.  Attorneys, mental health professionals and mediators can arrange for safety measures, if they are aware of the violent behavior and the forms that it takes.  Many survivors, especially people who have successful careers, find it difficult to acknowledge that they are subjected to domestic violence.  Your attorney and other professionals cannot assist you unless you make them aware.  Let them know that you have concerns about your safety in the process.

Emotions that both spouses bring to the divorce process need to be addressed before a settlement will occur. Fault will enhance the emotions.  Fortunately, there are effective processes for dealing with even very strong emotions in the mediation and collaborative processes. By sharing your concerns with your attorney and agreeing to the assistance of mental health professionals, emotions can be dealt with effectively and you and your spouse can move forward.

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