Should Fault be a Factor in Divorce?

Today I read an interesting article from the Arizona East Valley Tribune about how the Arizona legislature is considering making fault a factor in divorce in the state and thought to myself this is insane.  Forgive me for a moment as I understand my role as a divorce mediator in New Jersey is to be a neutral third party that has no opinion on anything but when I saw this I felt I had to break out of my role and share.   It seems the legislature is considering allowing judges in divorce cases to use various faults to weigh into their decision on what child support and spousal support / alimony awards would look like.   Granted this is being considered in Arizona where perhaps the same statutes that apply here in New Jersey on the equitable distribution of marital assets and liabilities do not apply, but I’m having a difficult time thinking as a divorce mediator how allowing fault to be a factor would result in a “fair and equitable” settlement.

Are there egregious cases where perhaps fault could apply such a domestic violence cases or infidelity?  Perhaps but that to me is a slippery slope.  If the whole idea of using a divorce mediation service is to get out of a bad marriage and move forward with your life, I guess my thought is that as painful as it might be, you need to put the past where it belongs and recognize that moving on with your life isn’t worth the pain that looking back might cause.

Now I’m sure there are those who say “wait a minute what about a case where one spouse cheated on another and the spouse that got cheated on had to pay support?”  Perhaps those would be one of my exceptions but what the Arizona legislature is proposing seems to be pretty much open-ended allowing any factor be it recent or say ten years old come into play.  Not to mention there are no proposed definitions of what constitutes fault.  Is not doing the dishes one night after a dinner party 5 years ago something one could bring up as an issue of fault in a divorce proceeding?  The way the law is being proposed right now in Arizona, it very well could be and forgive me but I don’t think that’s fair and equitable but I guess that’s why I’m a mediator and not a legislator.

As you’ve seen me say before, mediation allows each of you come to an agreement that works for you (and your children when applicable) that rises to your standard of what is considered fair and equitable.  In all of my years doing this job I can tell you that 99% of the time people wind up doing the fair and equitable thing in their collective opinion.  Yes it may take them some time to get there but most of the time, in fact, nearly all of the time, they get there as much as it would have seemed they would not have when we first started mediation.  But notice I didn’t say “the right thing” or “what I though was fair and equitable” as it’s not up to me to say what’s fair to them or not.  Sure as a NJ divorce mediator I need to keep an eye on the proceedings to make sure one party doesn’t take advantage of a power imbalance between the parties, be it financial or emotional, but if the parties agree and they are both of sound mind and body, then who am I to judge?

I leave that to the women and men in the black robes.

If you have any questions about divorce mediation or how mediation can benefit you, please feel free to contact us to schedule a free, no-obligation consultation in one of our six central New Jersey office locations where we will take some time to get to know more about you and your situation and see if mediation is right for you.  Of if you’re simply not ready yet, feel free to visit the Equitable Mediation Services website where you’ll find lots of great information about parenting plans, equitable distribution, NJ child support and spousal support / alimony and contact us when you’re ready.  We look forward to helping you get through your divorce peacefully, efficiently and with as little stress on you and your family as possible.