Recrimination in U.S. Divorce Law: Meaning, Examples, and Mo...

Introduction

Recrimination is a traditional defense to a fault-based divorce. The spouse being accused responds that the filing spouse committed the same misconduct (for example, adultery alleged by one spouse and admitted or proven on both sides). Historically, if both spouses were at fault on the same ground, courts could deny the fault-based divorce.

Today, all U.S. states offer a no-fault path to divorce, and many have abolished recrimination entirely or limited it to narrow situations. Even so, the concept still matters. Evidence of marital misconduct can influence related issues such as spousal support, property division (especially dissipation or waste), and sometimes child custody, depending on state law.

This guide explains what recrimination means, how it used to function in fault cases, what changed with the rise of no-fault divorce, and when evidence of conduct still counts.

What You’ll Learn

• The meaning of recrimination in fault-based divorce
• How “mutual fault” and “clean hands” work in this context
• The impact of no-fault divorce on the availability of recrimination
• How misconduct evidence can affect alimony, property division, and custody
• Related doctrines: condonation, connivance, and comparative rectitude
• Practical steps for raising or responding to conduct-based claims
• Key examples showing how courts treated recrimination then and now

Core Concepts

What Recrimination Means in Fault-Based Divorce

• Definition: Recrimination is a defense where the accused spouse argues that the filing spouse committed the same marital offense being alleged. Common grounds historically included adultery, cruelty, abandonment, or habitual intoxication.
• Effect in traditional fault cases: If both spouses were guilty of the same ground (for instance, both committed adultery), a court could refuse to grant a fault-based divorce. The idea flowed from the “clean hands” principle—courts would not reward a spouse who engaged in the same wrongdoing.
• Proof and procedure: The spouse raising recrimination had to plead and prove the other spouse’s misconduct. Standards of proof vary by state and by ground (for example, adultery often relies on credible circumstantial evidence).
• Practical outcome: In jurisdictions that still recognize the defense, a successful recrimination claim can block a divorce on that specific fault ground. In practice, the parties may still obtain a divorce through a no-fault claim.

How No-Fault Divorce Changed the Role of Recrimination

• No-fault basics: Every state allows divorce without proving fault, often using terms like “irreconcilable differences” or “incompatibility.” Because no particular wrongdoing has to be proven, recrimination generally does not apply to granting a no-fault divorce.
• Status today: Many states have abolished recrimination by statute or case law. Others keep it on the books for fault claims but see it rarely used because no-fault grounds are readily available.
• Why it still matters: Even in no-fault cases, evidence of misconduct can affect:
  • Alimony/spousal support in states that permit courts to consider marital misconduct
  • Property division if misconduct caused financial loss (for example, spending marital funds on an affair—often called dissipation)
  • Child custody only if the conduct affects the child’s welfare or safety (domestic violence and substance abuse are common concerns)

Related Doctrines: Condonation, Connivance, and Comparative Rectitude

• Condonation: Forgiveness of a marital offense, often shown by resuming the relationship after learning of the misconduct. If proven, it can bar a fault claim unless the misconduct recurs.
• Connivance: Participation in, consent to, or setup of the misconduct by the complaining spouse (for example, encouraging or arranging an opportunity for an affair). A spouse who “procured” the conduct may be denied a fault divorce.
• Comparative rectitude: Where both spouses committed wrongful acts, some courts historically granted the divorce to the spouse less at fault rather than denying relief to both. This approach softened the harsh effect of recrimination.

Key Examples or Case Studies

Smith v. Smith (illustrative)

• Allegations: The wife filed for divorce on the ground of adultery.
• Defense: The husband raised recrimination, asserting the wife also committed adultery.
• Outcome: The court found credible evidence of adultery by both spouses and denied the fault-based divorce. The parties later proceeded on a no-fault basis.

Johnson v. Johnson (illustrative)

• Allegations: The wife sought a divorce for cruelty, citing verbal and physical abuse.
• Defense: The husband argued recrimination, presenting proof that the wife also engaged in repeated verbal and physical aggression.
• Outcome: With mutual misconduct established, the court declined to grant a fault divorce. The judge noted neither party had “clean hands.”

Davis v. Davis (illustrative, no-fault context)

• Allegations: The wife filed on no-fault grounds, alleging irreconcilable differences.
• Attempted use of conduct evidence: The husband introduced evidence of the wife’s infidelity—not to block the divorce, but to influence alimony and custody.
• Outcome: The court confirmed that recrimination does not apply in a no-fault divorce. However, it considered the evidence to the extent allowed by state law, focusing on whether the conduct affected finances (alimony/property) or the child’s well-being (custody).

Practical Applications

• Confirm your state’s rules:
  • Check whether recrimination still exists for fault-based divorces where you live.
  • Review whether marital misconduct can affect alimony, property division, or custody.
• Choose your filing approach wisely:
  • If mutual fault is likely, a no-fault filing may save time, cost, and emotional strain.
  • If you need to establish fault (for example, to affect support under your state’s law), prepare for the other side to argue mutual misconduct.
• Plead and preserve defenses:
  • If recrimination is available in your jurisdiction, raise it as an affirmative defense if you are the respondent.
  • Consider related defenses such as condonation and connivance, which can also defeat fault claims.
• Focus on relevant evidence:
  • Alimony/property: Show financial impact (dissipation, waste, hidden spending) with documents—bank statements, credit card records, and tax returns.
  • Custody: Emphasize child-focused facts—safety concerns, parenting history, any protective orders, and evidence of domestic violence or substance abuse.
• Weigh the trade-offs:
  • Litigating mutual fault can increase costs and delay resolution.
  • Courts can grant a no-fault divorce even if fault claims fail, so consider whether the recrimination fight changes the bottom line.
• Safety first:
  • If abuse is present, prioritize protection (temporary orders, safety planning) and consult an attorney experienced in domestic violence cases.
• Get legal advice:
  • State law varies. A local family law attorney can assess whether misconduct evidence helps or hurts your case and how best to present it.

Related topics to review:

• Irreconcilable differences (no-fault)
• Fault divorce
• Alimony and alimony pendente lite (temporary support)
• Custody frameworks, including joint or “divided” custody terminology used in some jurisdictions

Summary Checklist

• Recrimination = defense claiming the filing spouse committed the same misconduct
• Many states have abolished or limited it; no-fault grounds make it rare
• “Clean hands” can block a fault-based divorce when both spouses share the same fault
• No-fault divorce renders recrimination irrelevant to granting the divorce itself
• Misconduct may still affect alimony, property division (especially dissipation), and custody in some states
• Consider related defenses: condonation, connivance; and the alternative of comparative rectitude
• Decide strategically between fault and no-fault filings based on your state’s statutes and your facts
• Gather focused evidence: financial records for dissipation; child-centered proof for custody
• Consult local counsel to align your approach with state law and court practice

Quick Reference