IF IT’S BOTH PARTIES “FAULT” THE MARRIAGE DIDN’T WORK IS THAT A DEFENSE TO A DIVORCE CASE?

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

Cohee v. Cohee, 26 Kan.App.2d 756

This case addresses the following issue:

Is mutuality of fault a defense to a petition for divorce?

This case explored the issue of whether mutuality of fault is a defense to a petition for divorce on the grounds of failure to perform a marital duty. That is, can one party’s fault be raised as a defense to the other party’s fault? The court ultimately concluded that in a divorce action, fault should not be considered in determining division of property or spousal maintenance.

Patricia Cohee (appellee) filed a petition against her husband, Terry Cohee (appellant), alleging incompatibility and requested separate maintenance. Terry filed a counter petition requesting an absolute divorce based on a failure to perform a material marital duty. The district court denied Terry’s counter petition. The district court also awarded maintenance and divided marital assets. The district court reasoned that the parties were mutually involved in disputes that resulted in violence. Due to the mutuality of the violence the court denied Terry’s counter-petition for divorce. Terry appealed the district court’s decision.

Terry argued that the trial court erred in concluding that an absolute divorce does not have to be granted regardless of evidence establishing the proper grounds. The Court of Appeals reversed this holding and held that Patricia and Terry were to be granted an absolute divorce because there was evidence presented that supported a failure to perform a marital duty.

Terry also argued that the trial court erred in not considering fault when making its rulings regarding property division and spousal support. The Court of Appeals stated that the court does not have to consider fault when considering a division of property and an award for spousal support. The court found that considering fault would serve “no end but an impermissible of punishing a person’s marital misconduct.”

In sum, fault is not considered in determining division of property or maintenance. In addition, mutuality of fault is not a defense to a petition for divorce.