Recrimination is a defense used in some divorce cases. Its purpose is to prevent one person from being found at fault for destroying a marriage by showing that the other spouse also is at fault. When this happens the two individuals are not divorced. Some jurisdictions have stopped recognizing the use of recrimination. Even if it is still applicable, if the jurisdiction permits no-fault divorces, it can easily be avoided.
People may falsely assume that being found at-fault when divorcing makes no difference because the couple is breaking up anyway. Fault, however, makes a major difference because it often determines which assets a person will receive, who will be liable to pay spousal support, and who will receive custody of any mutual children. With so much at stake, if one spouse is accused, he may likewise wish to make an accusation in return.
Think of the process along the same lines as a counter-claim in other types of civil lawsuits. If Josh breaks Paul’s window, Paul can sue Josh for the damages. However, if Paul broke Josh’s door, Josh can countersue. If the damages are equal or close to it, there are chances that a judge could refuse to order action to be taken on either claim since one basically nullifies the other.
When recrimination is used in divorce cases, instead of comparing financial value, the extent of each parties wrongdoing is assessed. One spouse, say Melissa, will allege that Shawn had an affair and she wants a divorce on the grounds of adultery. Shawn may argue that he had to have police remove Melissa from the home on several occasions because she became violent. Shawn may wish to allege that Melissa is at fault for being abusive. If it is found that both spouses are guilty, recrimination occurs.
This does not mean, however, that the marriage will be dissolved. It essentially means that the two individuals are both wrongdoers and deserve one another. Therefore, a divorce is not granted and they must remain married.
No-fault divorces are becoming increasingly popular, eliminating the need to argue about what any one person has done. In some jurisdictions, recrimination is no longer used. In jurisdictions where this defense is still applicable, if both spouses know that they have committed wrongs in the marriage, they can simply avoid all of the complication that recrimination would cause by filing for a no-fault divorce.