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
cruel and abusive behavior
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
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
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.