7.4.3 Specific Types of Fault

Abandonment. Abandonment without lawful cause is a common ground for finding “fault” that bars final spousal support. It is not uncommon for an abusive former partner to allege abandonment when the abused spouse leaves because of the violence. A finding of domestic violence precludes a finding that the victim abandoned her spouse.1  In order to defend against fault, the victim must prove the abuse if she has not already done so. Even threats of violence constitute lawful cause for abandonment.2

Adultery. Despite the presumption in favor of final periodic support, a domestic violence victim who engages in either pre- or post-filing adultery may be considered at fault and barred from final support.3

Self-defense or Responsive Violence. If the victim of abuse has committed violence against the abusive partner that is a “reasonable and justifiable response” to the abuse, she is not “at fault” in the breakup of the marriage.4  According to the 2018 Revision Comments to Article 112, “[i]n the domestic violence context in particular, the court should consider the potentially responsive nature of a victim’s actions.” Arguably, “responsive” violence is broader than self-defense and could include acts of resistance in an abusive relationship that are not necessarily or neatly framed as self-defense.

Reconciliation. Reconciliation often occurs in violent relationships prior to the final separation. Reconciliation that follows “fault” nullifies the prior fault.5  Thus, the critical question is the alleged misconduct that occurred between the last reconciliation and the filing of the divorce action. But in some cases, reconciliation can be challenged as nonmutual. For instance, if a perpetrator moves back into a shared home without the victim’s consent, or the victim returns to a shared home for fear of her safety, her intent to reconcile may be at issue. The motives and intent of the parties will determine reconciliation.6  In general, however, if domestic violence, financial abuse, fear, or coercion contributed to the circumstances that the abuser claims constitute reconciliation, the requisite intent and forgiveness may be lacking, and application of the nullification principle is both wrong and inequitable.

Mental health and substance dependence. Some survivors suffer from mental health challenges or substance dependence because of the trauma and abuse they have experienced.7  “Misconduct” caused by mental illness is excused and will not bar final support.8  The mental illness must precede the misconduct. In these cases, expert medical testimony on the mental illness and the causal relationship to the misconduct is highly recommended, but not required.9  Alcohol and substance dependence can be fault-based causes for divorce, but the consumption must be to such an extent that it substantially interferes with the spouse’s marital duties or inflicts great mental anguish upon the other spouse.”10  One study found that 67% of abusive partners frequently abuse alcohol.11  The abusive partner’s intemperance may preclude a finding of fault against the victim.12  A course of conduct such as drinking, when approved and consented to by both spouses, cannot constitute mutual fault.13

• 1Thomas v. Thomas, 2017-0760, p. 9 (La. App. 4 Cir. 2/21/18), 238 So. 3d 515, 522.
• 2Caldwell v. Caldwell, 95-CA-963 (La. App. 5 Cir. 3/13/96), 672 So. 2d 944, 947.
• 3Morgan v. Morgan, 2022-0472, p. 13 (La. App. 4 Cir. 12/13/22), 353 So. 3d 1026, 1034.
• 4See Smith v. Smith, 08-575, p. 16 (La. App. 5 Cir. 1/12/10), 31 So. 3d 453, 464 (wife arrested for simple battery after throwing scalding water on her husband was not at fault in the break-up of the marriage where evidence showed a history of abuse and that she acted in self-defense).
• 5La. C.C. art. 104; see Doane v. Benenate, 95-CA-0953, p. 3 (La. App. 4 Cir. 2/15/96), 671 So. 2d 523, 525; see also Noto v. Noto, 09-1100, p. 7 (La. App. 5 Cir. 5/11/10), 41 So. 3d 1175, 1180.
• 6Woods v. Woods, 27199-CA, p. 2 (La. App. 2 Cir. 8/23/95); 660 So. 2d 134, 136; see also Rivette v. Rivette, 2004-1630, p. 4 (La. App. 3 Cir. 4/6/05), 899 So. 2d 873, 875 (citing Woods).
• 7Richard Irons & Jennifer Schneider, When is Domestic Violence a Hidden Face of Addiction, 29 J. Psychoactive Drugs 337 (1997) (reporting that battered women comprise 64% of female patients admitted to inpatient psychiatric service).
• 8Doane, 95-CA-0953, p. 3, 671 So. 2d at 525; Eppling v. Eppling, 537 So. 2d 814, 818 (La. App. 5 Cir. 1989).
• 9See Scarengos v. Scarengos, 606 So. 2d 9, 10 (La. App. 5 Cir. 1992). But see Dolese v. Dolese, 517 So. 2d 1279, 1280 (La. App. 4 Cir. 1987).
• 10Matthews v. Matthews, 15-499, p. 7 (La. App. 5 Cir. 12/23/15), 184 So. 3d 173, 178.
• 11Irons & Schneider, supra.
• 12"Intemperance" is defined by Oxford Languages as “excessive indulgence, especially in alcohol.” Intemperate, Concise Oxford English Dictionary (luxury ed. 2011).
• 13Jenkins v. Jenkins, 38,873-CA (La. App. 2 Cir. 8/22/04), 882 So. 2d 705; 712-13; Matthews, 15-499, 184 So. 3d at 179.