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Marital Misconduct: Does It Count?
by Laura Johnson
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
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.
" habitual drunkenness or addiction,
" domestic violence,
" cruel and abusive behavior, or
" 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, and
" 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, and
" 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
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).