Fault-Based Alimony in No-Fault Divorce

Author(s)

Kirsten Gallacher

Details

Faculty editor: Paul Horton
Publication: Contemporary Legal Issues
Volume: 22
Issue:
Start Page: 79
Month: December
Year: 2015
Type: Article

Abstract

Prior to the emergence of no-fault divorce, the theoretical justification for alimony was easy enough to grasp. Marital misconduct—fault—drove the inquiry not only into whether a claim for divorce was stated but also into whether alimony could be awarded and to whom. A typical contested divorce scenario would begin with a wife’s petition stating one or more claims of her husband’s misconduct—adultery, cruelty, desertion, intemperance, etc.—and seeking alimony, to which the husband would respond with counterclaims of misconduct or affirmative defenses of recrimination or condonation and denial that alimony could be awarded. If the case went to trial in this way, the divorce court might (1) find the husband guilty and the wife innocent, grant divorce, and declare the wife eligible for alimony; (2) find the wife guilty and the husband innocent, grant divorce on the husband’s counterclaim, and declare the wife ineligible for alimony; or (3) find both spouses guilty (or both innocent) and refuse to grant the divorce or to award alimony. By the 1960s some state courts had modified the logic of this scenario by engaging in “comparative fault” inquiry when alimony not divorce was the issue.