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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 
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 
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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Marital Misconduct: Does It Count?  
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