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Marital Misconduct: Does It Count?
Even though your state may
be a no-fault divorce state, it doesn't mean that you or your
spouse won't have to answer in some way for any misbehavior during the
marriage. It's what
divorce lawyers and courts refer to as marital misconduct and, in
certain states, can
effect the outcome of the division of property, an award of spousal
support, or an award
of attorney's fees for the victim-spouse.
The legal definition of marital misconduct is any conduct that
undermines the marital
relationship. It becomes a factor in a divorce when the
offender-spouse's behavior forces
the victim-spouse to assume extra burdens in the marriage. It isn't
meant to punish the
offender-spouse or award him or her an inadequate amount of property or
income, but to
fairly compensate the victim-spouse.
The rationale behind this theory is that the victim-spouse is compelled
to contribute more
to the marriage because of the offender-spouse's misconduct, therefore
he or she is
entitled to have the offender-spouse's behavior taken into consideration
when property or
income are divided. Marital misconduct can be disregarded if both
spouses are guilty of
marital misconduct. In some states, marital misconduct is specifically
disregarded as a
matter of law.
In those states where misconduct is a factor, there are several broad
categories of
behavior that might be classified as marital misconduct. They are:
habitual drunkenness or addiction
adultery
domestic violence
cruel and abusive behavior
economic fault.
Once the offender-spouse's behavior has reached the level of marital
misconduct, it is the
court's responsibility to determine just how much weight to give to it
in each specific
situation. Some of the considerations the court looks at when deciding
this issue are:
the length of the marriage
the character of the misconduct
the time period during the marriage when the misconduct occurred
the frequency of the conduct and whether it was continual.
Certain types of marital misconduct may have more of an impact upon a
court's
decision-making than others. For example, cruelty or domestic violence
might not be a
relevant or appropriate consideration for making an equitable division
of property because
this type of misbehavior typically isn't relevant to the acquisition of
marital property.
The same cannot be said for economic fault, adultery or an addiction,
all of which can
directly influence a couple's property.
There are several types of economic fault. They are:
dissipation of assets
hiding assets
diverting marital or community income to pay for an addiction
spending marital or community income on an extramarital relationship
excessive or abnormal spending
destruction of property
the fraudulent sale or conveyance of property
any other unfair conduct that prevents the court from making an
equitable division of
property.
Some divorcing spouses believe that once they are separated and a
divorce filed that
marital misconduct, especially adultery or economic fault, has no effect
on the outcome in
a divorce. That isn't actually the case. Each divorce is very fact
specific and the same
logic about the impact of marital misconduct on the division of property
applies whether
it occurred prior to the separation or during the pendency of a divorce.
This is
particularly true for economic misconduct.
There are some states that have statutes that specifically permit a
court to award a
disproportionate or lesser share of property to an offender-spouse,
particularly if the
misconduct can be classified as economic. The facts of each particular
divorce play a
heavy role in how the court applies the law.
In cases that involve the dissipation, hiding or destruction of assets,
the excessive or
abnormal spending of income, or the fraudulent conveyance of assets the
court can't
increase the size of the marital or community estate that actually
exists. However, it can
order a disparate division of the existing and known property to
reimburse the
victim-spouse for his or her loss in the couple's estate.
In addition to having a possible effect on the division of property,
marital misconduct
may also have an effect on the amount of spousal support an ex-spouse
may receive provided he or she qualifies for such support. This can work
both ways. If the spouse who may be entitled to receive support is
guilty of the misconduct, his or her receipt of support may be in
jeopardy depending upon the nature and level of the misconduct. On the
other hand, a paying spouse might have to pay more, especially if his or
her behavior caused the victim-spouse to give up or reduce the ability
to earn income.
The following states take marital fault into consideration when
determining an award of
spousal support: Alabama, Arizona, Connecticut, District of Columbia,
Florida, Georgia,
Idaho, Louisiana, Maryland, Massachusetts, Michigan, Mississippi,
Missouri, Nevada, New
Hampshire, New Jersey, New York, North Dakota, Pennsylvania, Rhode
Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia,
West Virginia and Wyoming. (Source: American Bar Association, Family Law
Quarterly, Winter 1998, Tables Summarizing the Law in Fifty States)
The following states take marital misconduct, especially economic fault,
into
consideration when dividing marital or community property or in
reimbursing the marital or
community estate: Alaska, Arizona, California, Colorado, Connecticut,
Delaware, District
of Columbia, Florida, Hawaii, Illinois, Indiana, Kansas, Kentucky,
Maine, Massachusetts,
Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New
Hampshire, New Jersey,
New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon,
Pennsylvania, Rhode
Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont,
Virginia, West
Virginia and Wisconsin. (Source: American Bar Association, Family Law
Quarterly, Winter
1998, Tables Summarizing the Law in Fifty States).
This article was contributed by Laura Johnson, author of Divorce
Strategy: Tactics for a
Civil Financial Divorce.
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