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THE ROLE OF MARITAL MISCONDUCT IN DIVIDING PROPERTY UPON DIVORCE
2003 National Legal Research Group, Inc.

Overview

One of the most significant policy questions involving the division of marital property is whether the division should be influenced by marital misconduct. At present, a majority of jurisdictions hold that marital misconduct is a factor to be considered only where it has an economic impact on the marital estate. A minority of jurisdictions, however, permit the trial court to consider marital misconduct even if the effect of the misconduct was purely noneconomic. A few of these states require that the misconduct meet some minimum level of seriousness; most allow any misconduct to be given at least some weight.

The purpose of this article is to explore the split over whether fault is relevant, and to look at how fault affects the division in those situations in which fault remains relevant.

Economic Impact Required

A slight majority of American jurisdictions hold that fault is relevant only where it has an economic impact on the marriage. According to the table at the end of this article, of 49 jurisdictions which permit the trial court to divide marital property equitably, 27 do not permit consideration of fault that has no economic impact; 21 permit consideration of such fault in at least some situations; and one state (Utah) has yet to make a clear choice.

Most cases and statutes rejecting consideration of noneconomic misconduct are traceable to 307 of the Uniform Marriage and Divorce Act, 9A U.L.A. 159, which required that property be divided "without regard to marital misconduct." This was a significant change from prior law in most states, which generally permitted consideration of fault if it allowed the division of property at all. The drafters explained the change:

The Act's elimination of fault notions extends to its treatment of maintenance and property division. The distribution of property upon the termination of a marriage should be treated, as nearly as possible, like the distribution of assets incident to the dissolution of a partnership.

UMDA Prefatory Note, 9A U.L.A. at 161. Because fault is not considered when the court distributes the assets of a dissolved partnership, the drafters of the UMDA believed that fault should likewise not be considered when the court dissolves a marital partnership.

The UMDA's analogy to a business partnership is not perfect, for marital misconduct is much more relevant to a marriage than the personal misconduct of the partners is to a partnership. The drafters did not expressly explain why, when determining whether to permit consideration of fault, they believed that the partnership model was applicable.

Part of the explanation may lie in the drafters' justification for the UMDA provision eliminating fault grounds for divorce, replacing them with a single standard: the irretrievable breakdown of the marriage. "This standard," the drafters explained, "will redirect the law's attention from an unproductive assignment of blame to a search for the realities of the marital situation." UMDA Prefatory Note, 9A U.L.A. at 161. Clearly, the drafters believed that consideration of fault in divorce cases whether the issue was grounds, property division, or spousal support was "unproductive," and that the process would be more "productive" if fault were not considered. As any divorce practitioner knows, consideration of fault tends to bog the court down into considering emotionally charged factual issues which are often more relevant to the parties themselves than to the attorneys or the court. The drafters of the UMDA believed that the property division process would be more efficient, and would focus better upon the real economic issues at stake, if fault were not considered.

In states which do not base their property division provisions on the UMDA, and which do not expressly either prohibit or permit consideration of fault, the courts have sometimes taken the initiative and held that fault is not a factor. A New Jersey court relied on reasoning similar to the UMDA:

[E]ach spouse contributes something to the establishment of the marital estate even though one or the other may actually acquire the particular property. Therefore, when the parties become divorced, each spouse should receive his or her fair share of what has been accumulated during the marriage. The concept of fault is not relevant to such distribution since all that is being [a]ffected is the allocation to each party of what really belongs to him or her.

Chalmers v. Chalmers, 65 N.J. 186, 320 A.2d 478, 483 (1974). Other courts have found consideration of fault contrary to the public policy of encouraging loving marriages:

Divorce is not a vehicle by which one spouse is compensated for having given more than he or she received during the marriage or for having had to suffer during the marriage. . . . If such evidence was relevant, each spouse would be well-advised to prepare from the date of the marriage for the possibility of a divorce by meticulously keeping score in a daily diary. The trial would be a contest of diaries and experts. Allowing it to be such a vehicle would be contrary to the public policy in favor of loving, trusting, harmonious marriages and no-fault divorces.

Hatayama v. Hatayama, 9 Haw. App. 1, 818 P.2d 277, 282 (1991).

Economic Fault. The policy statements quoted above all argue, in one way or another, that consideration of fault interferes with the process of resolving efficiently the real financial issues before the court. Obviously, when marital misconduct has a direct financial effect, it is one of the "real" financial issues before the court. For example, while the mere fact that the husband had an extramarital affair is irrelevant, the fact that the husband spent $10,000 in marital property taking a cruise with his paramour can still be considered. Misuse of funds for a purely economic reason (e.g., reckless gambling at the local racetrack) would clearly be relevant, and this conclusion does not change merely because the misuse involved a paramour. Indeed, a contrary result would violate the policy that fault should be irrelevant, by making the weight of the same economic misconduct differ depending upon whether a paramour was or was not present.

For cases specifically holding that economic misconduct can be considered, in states where noneconomic misconduct is normally not relevant, see Oberhansly v. Oberhansly, 798 P.2d 883 (Alaska 1990); Eckroade v. Eckroade, 570 So. 2d 1347 (Fla. Dist. Ct. App. 1990); Pardue v. Pardue, 518 So. 2d 954 (Fla. Dist. Ct. App. 1988); R.E.G. v. L.M.G., 571 N.E.2d 298 (Ind. Ct. App. 1991); Kaply v. Kaply, 453 N.E.2d 331 (Ind. Ct. App. 1983); Brosick v. Brosick, 974 S.W.2d 498 (Ky. Ct. App. 1998); Hebert v. Hebert, 475 A.2d 422 (Me. 1984); Boucher v. Boucher, 131 N.H. 377, 553 A.2d 313 (1988); Blickstein v. Blickstein, 99 A.D.2d 287, 472 N.Y.S.2d 110 (1984); Smith v. Smith, 847 P.2d 827 (Okla. Ct. App. 1993); Jones v. Jones, 334 N.W.2d 492 (S.D. 1983); Smith v. Smith, 314 N.C. 80, 331 S.E.2d 682 (1985); and Charlton v. Charlton, 186 W. Va. 670, 413 S.E.2d 911 (1991).

Detailed consideration of the various types of purely economic fault which the court can consider is outside the scope of this article. The most common type of purely economic fault is dissipation of marital property, a subject which has been addressed extensively elsewhere. See, e.g., Here Today, Gone Tomorrow: Identification and Division of Dissipated Marital Assets, 8 Divorce Litigation 21 (1996).

While dissipation on the eve of divorce is the most common type of economic fault, courts have considered major negative contributions which were not made in anticipation of divorce. See Keathley v. Keathley, 76 Ark. App. 150, 61 S.W.3d 219 (2001) (husband made no homemaker contributions, and his excessive gambling consumed any direct financial contributions; he also incurred gambling debt by forging wife's signature on credit-card applications; affirming unstated unequal division in favor of wife, including 80% of the marital share of her retirement benefits); In re Norris, 252 Ill. App. 3d 230, 625 N.E.2d 6 (1992) (where husband lost well over $1 million through gambling and poor investments, and had substantial expectancy of future trust benefits, proper to award only substantial remaining marital asset to wife); In re Marriage of Bartley, 712 N.E.2d 537 (Ind. Ct. App. 1999) (husband spent excessive amounts of marital property during the marriage gambling on NCAA and NASCAR events; negative contribution was one division factor in wife's favor); Adair v. Adair, 735 So. 2d 383 (Miss. 1999) (spendthrift wife made negative economic contribution to marriage); Deck v. Deck, 64 S.W.3d 870 (Mo. Ct. App. 2002) (husband spent unreasonable amounts of marital property buying unnecessary vehicles and farm equipment; wife kept home and raised 4 children under extremely adverse conditions, then returned to work after husband retired at age 49; proper to award wife 84.59% of the marital estate); Meints v. Meints, 258 Neb. 1017, 608 N.W.2d 564 (2000) (proper to award wife $18,000 and husband only $9,000; husband's failure to pay income taxes for seven years resulted in substantial marital and nonmarital debts); Bragg v. Bragg, 347 S.C. 16, 553 S.E.2d 251, 255 (Ct. App. 2001) (proper to award wife only 35% of marital estate, where she had such "exuberant charging habits" that she ultimately declared bankruptcy; some of the spending had been concealed from husband, and husband earned most of the marital income); Mir v. Mir, 39 Va. App. 119, 571 S.E.2d 299 (2002) (husband failed to take proper care of home, and made improvements which ultimately reduced its value; proper to award wife 95% of marital equity); Jones v. Payne, 36 Va. App. 401, 551 S.E.2d 10 (2001) (affirming unequal division in husband's favor, where wife terminated her employment over husband's objection, and bulimia limited wife's noneconomic contributions to the marriage); Hall v. Hall, 40 P.3d 1228 (Wyo. 2002) (affirming unstated unequal division; "Husband was employed only intermittently during the marriage. He spent a good portion of the couple's money drinking and gambling, and he became violent and abusive toward Wife").

There is always a trade-off in economic fault cases between the court's desire to do justice to the parties and its desire to avoid an extensive audit of marital finances. As a general rule, it is safe to say that where the negative contribution is more than a few years old, it will be considered only if it is unusually large in amount, or if it was made under circumstances amounting to serious misconduct.

The rule permitting consideration of economic fault is not limited to fault which is purely economic. The court is permitted to consider fault which has social or moral elements, as long as consideration is limited to the purely economic effects. In other words, fault which has an economic impact can always be considered, regardless of whether that fault does or does not have a social or moral side as well. See Jones v. Jones, 942 P.2d 1133 (Alaska 1997); In re Marriage of Casias, 962 P.2d 999 (Colo. Ct. App. 1998); Koch v. Koch, 874 S.W.2d 571 (Tenn. Ct. App. 1993) (trial court did not improperly consider fault by noting that wife had left husband for substantial periods during marriage; absences reduced the value of her homemaker contributions and thus had an economic impact).

Cases applying the rule have tended to focus upon two specific situations. First, the court may consider the economic consequences of spousal abuse normally the abused spouse's medical expenses and reduced earning capacity. See In re Coomer, 622 N.E.2d 1315 (Ind. Ct. App. 1993) (where husband's physical abuse of wife created health problems which reduced her earning capacity and created substantial likelihood of future medical expenses, proper to award wife 60% of marital estate); Miles v. Werle, 977 S.W.2d 297 (Mo. Ct. App. 1998) (husband indirectly dissipated marital assets by physically abusing the wife, so that marital funds had to be used for medical expenses); In re Marriage of Fenzau, 311 Mont. 163, 54 P.3d 43 (2002) (affirming lower court order leaving wife with $263,571 and husband with only his pension and personal property, where husband was imprisoned for abusing wife; court properly considered wife's medical and financial needs arising from the abuse); Wheeler v. Upton-Wheeler, 113 Nev. 1185, 946 P.2d 200 (1997); In re Marriage of Foran, 67 Wash. App. 242, 834 P.2d 1081 (1992).

Second, the court may consider the economic effects of the abused spouse's imprisonment. See In re Marriage of Casias, 962 P.2d 999 (Colo. Ct. App. 1998) (considering husband's incarceration for sexually assaulting wife's disabled son and his girlfriend); Hebert v. Hebert, 475 A.2d 422 (Me. 1984) (considering husband's incarceration for sexually assaulting parties' daughter); Chiodini v. Chiodini, 981 S.W.2d 155 (Mo. Ct. App. 1998) (proper to award wife 80% of marital estate; husband tried to shoot wife, but missed and shot police officer, and resulting legal morass consumed substantial marital assets, resulting in foreclosure of marital home); In re Marriage of Wanless, 168 Or. App. 238, 3 P.3d 179 (2000) (awarding incarcerated husband only $2,500 from home worth $82,000; wife had minimal income). But see Bell v. Bell, 642 So. 2d 1173 (Fla. Dist. Ct. App. 1994) (error to consider adverse judgments against the husband for fraud on third parties; strong and convincing dissent).

Litigation Misconduct. Another type of economic fault which is often considered is litigation misconduct during the divorce case. See Morrissey v. Morrissey, 153 A.D.2d 609, 544 N.Y.S.2d 643, 645 (1989) (proper to give wife one-half of husband's practice, based in part upon the husband's testimony, which "tended to obscure rather than clarify his true economic status"); Shoffner v. Shoffner, 91 N.C. App. 399, 371 S.E.2d 749 (1988); In re Williams, 421 N.W.2d 160 (Iowa Ct. App. 1988) (failure to cooperate throughout the case considered as an adverse factor in determining husband's credibility).

In Schwartz v. Schwartz, 235 A.D.2d 468, 652 N.Y.S.2d 616 (1997), the husband withheld consent to the wife's Get (an Orthodox Jewish religious divorce) as a device to extort additional financial benefits from her. The court held that because of the husband's misconduct he had forfeited his right to an equitable distribution award.

There are also cases using an unequal division as a sanction for discovery violations. See Emanuelson v. Emanuelson, 26 Conn. App. 527, 602 A.2d 609 (1992) (considering as a division factor husband's vagueness about the financial details of his business); In re Marriage of Marx, 281 Ill. App. 3d 897, 667 N.E.2d 734 (1996) (citing husband's uncooperativeness during discovery as one factor supporting an award to wife of 60% of marital estate); Amrhein v. Amrhein, 29 Mass. App. Ct. 336, 560 N.E.2d 157 (1990) ("Evasiveness or concealment by a party, however, may justify inferences of fact that will support an equitable division"); Halouska v. Halouska, 7 Neb. App. 730, 585 N.W.2d 490 (1998) (where husband failed to produce evidence on value of debts, proper to award debts to husband without valuing them); Faram v. Gervitz-Faram, 895 S.W.2d 839 (Tex. App. 1995) (listing discovery violations as one factor supporting decision to award husband only 27.1% of the community estate); Capellen v. Capellen, 888 S.W.2d 539 (Tex. App. 1994) (in light of husband's evasive testimony at trial, unequal division of community estate was equitable). But see Shoffner v. Shoffner, 91 N.C. App. 399, 371 S.E.2d 749 (1988) (unequal division should not be used as a sanction for noncompliance with discovery; other, more traditional, sanctions should be used instead).

Discovery violations should be considered only to the extent that they actually burdened the other party. See Roe v. Roe, 402 N.W.2d 829 (Minn. Ct. App. 1987) (where husband's discovery abuses were discovered before trial and caused wife no actual damages, abuses did not entitle wife to a larger property award). Where other discovery sanctions have adequately offset any burden imposed, it is error to make an unequal division as an additional penalty. See Cohen v. Cohen, 228 A.D.2d 961, 644 N.Y.S.2d 831 (1996) (where court had already properly precluded husband from presenting evidence as discovery sanction, error to increase value of business by an arbitrary 20% as discovery sanction).

Fault Always Relevant

A significant minority of jurisdictions (21 by the author's count) continue to treat noneconomic fault as one relevant factor in dividing marital property in at least some situations. The reasons for the minority rule begin with the conceptual weakness of the stated justification for the majority rule.

Those supporting the majority rule believe that fault interferes with the efficient resolution of the real economic issues before the court. It is true that the insertion of fault makes the property division process less efficient. But the law tolerates many things which make the process less efficient, because they ultimately make the process more fair. To take just one example, when a state decides to recognize marital and separate property, the law requires the parties and the court to spend a great deal of time and attention classifying the various assets owned by the parties. This classification process interferes greatly with the efficiency of the property division process. Yet a strong majority of states have a classification system, because the system makes the result fairer and more consistent. Indeed, equitable distribution itself is clearly less efficient in dividing property than the system which it replaces the title theory. Efficiency is important, but it is only one desirable attribute of a property division system. In many instances, the law has deliberately accepted inefficiency in the interest of increased fairness.

Pure efficiency, therefore, is not a sufficient explanation for the UMDA's decision to consider fault. Necessarily, in order to reject fault, the drafters of the UMDA had to believe not only that consideration of fault was inefficient but that it did not make the final result significantly more fair. In advocating a "search for the realities of the marital situation," UMDA Prefatory Note, 9A U.L.A. at 161, the drafters had to believe that fault was not one of those realities.

But the belief that fault should not be one of "the realities of the marital situation" is hard to justify across the board. For example, where the facts show prolonged, consistent, physical abuse of one spouse by the other, that abuse is by any reasonable standard the dominant reality of the marital situation. Everything which occurs in such a marriage, particularly from the viewpoint of the battered spouse, is influenced and indeed generally dominated by the pervasive desire to avoid abuse. See generally Lenore E. Walker, The Battered Woman (1979). The UMDA's broad assertion that fault is not among the realities of the marital situation in such a marriage is at best woefully inaccurate, and at worst downright offensive. Without reciting a detailed list of other scenarios involving extreme marital misconduct, it is surely accurate to note that other situations exist in which fault truly is a dominating reality of the marriage. In these situations, ignoring fault may make the process more efficient, but it makes the process substantially less fair.

Moreover, the effect of the UMDA's single-minded focus on efficiency in setting a rule for consideration of fault is to view marriage primarily as a financial relationship as an alternate form of business partnership. But is that an appropriate view? To most married persons, marriage is much more than business; it is the most intimate of all human relationships. If the courts insist upon looking only at the parties' economic relationship, they are adopting a view of marriage which is fundamentally different from that of most married persons. In addition, they are also sending a message that the way in which the parties deal with their money is more important than the way in which they deal with each other and their children. In an area of law which was invented to give more recognition to the nonmonetary, economic contributions of dependent spouses, this failure to acknowledge the nonmonetary, noneconomic side of marriage is striking.

No one doubts that the UMDA responded very well in some areas to the problems of divorce law in the 1960s. Its decision to include a property division provision, controversial at the time, has become settled law by acclamation. Yet as time gives us more perspective on the UMDA, a clearer sense emerges that in some important areas the UMDA was an overreaction to existing problems. For example, there is a growing recognition that in its desire to recognize the growing employability of women the UMDA's spousal support provision went too far, suggesting that any woman who was employable did not need support, regardless of whether her earnings were sufficient to reach the marital standard of living. The most comprehensive attempt at creating uniform rules for divorce, the American Law Institute's Principles of the Law of Family Dissolution, adopts a much more nuanced approach, recognizing employability where it exists, but also placing renewed importance upon the marital standard of living. See generally Brett R. Turner, Spousal Support in Chaos, 25 Family Advocate 14 (Spring 2003).

Just as the UMDA's spousal support provision went too far with a good idea (recognizing the employability of women), so did the UMDA's fault provision go too far in eliminating consideration of fault. It is simply not true that fairness never requires consideration of fault. In at least some situations, fault is an important or even dominant feature in the marriage. Where this is true, consideration of fault is required in the interests of fairness, despite the fact that such consideration will probably make resolution of the case somewhat less efficient. Efficiency must sometimes give way to other concerns.

The argument is sometimes made that a tort remedy gives sufficient protection to victims of major domestic abuse, and that consideration of fault is accordingly not necessary. But the tort remedy consumes significantly more judicial resources, and is not well-tailored to respond to violence in the domestic setting. Short statutes of limitations, aimed at unmarried parties with every incentive to bring suit immediately after the violence occurs, are likely to prevent relief for all but the most recent episodes of violence. Finally, and most importantly, when fault is such a central component of the parties' overall marital relationship, it is downright unrealistic to ask the court to divide marital property on the assumption that fault was not present. One simply cannot separate the parties' economic relationship from their personal relationship as clearly as the drafters of the UMDA desired.

Based upon these arguments, a significant number of states continue to hold that fault is one relevant factor. In many of these states, the relevance of fault is provided by statute. Yet it is wrong to assume that statutes listing fault as a factor are the product of unreasonably conservative legislators dominated by extreme interest groups. As far as can be determined, the public itself supports consideration of marital misconduct in at least some cases. For example, a study of parties in California divorce cases reported that a majority expected and believed that fault should affect the distribution of the marital estate. L. Weitzman, The Divorce Revolution 22-26, 28-31 (1985). Interestingly, the rationale was not so much that the guilty spouse needed to be punished but, rather, that society should recognize the contributions of the innocent spouse who remains in a difficult situation in an attempt to keep the marriage afloat.

Indeed, perhaps the clearest evidence that fault should be relevant in at least some situations is the fact that courts actually do consider it, even where the law on the books provides otherwise. For instance, in Mellon Bank, N.A. v. Holub, 400 Pa. Super. 360, 583 A.2d 1157 (1990), the husband forged the wife's signature on a $50,000 loan and then tried to hire a third party to kill her. Even though fault is not a factor in Pennsylvania, the court still awarded the wife all of the marital property. Most practitioners in states which do not consider fault are likewise aware of situations in which fault actually did influence the result, even though the law on the books provided otherwise. A blanket rule against any consideration of fault encourages courts to either ignore the law entirely or to twist the law of economic misconduct when necessary to support an obviously equitable result. The law will develop more consistently, and will be easier for the public to understand, if there is a "steam valve" for open consideration of fault in equitably compelling fact situations.

It is unfortunate in some ways that the argument in favor of considering fault when dividing property has become entangled with policy arguments against no-fault divorce as an institution. The author believes in no-fault divorce, mostly because he is convinced that the courts are neither able nor willing to administer a fault-based system. Above all else, fault-based divorce founders on the rock of pervasive false testimony. The willingness of litigants to testify falsely, when there exists no other method for obtaining a divorce desired by both spouses, is unlikely to change.

But these objections apply only when fault is a condition on the granting of the divorce itself. A system which considers the actual burdens imposed by marital misconduct, whether economic or noneconomic, is clearly workable; indeed, it is presently the law in a significant minority of American jurisdictions. A system which ignores marital misconduct in every case, as a matter of law, divides property based upon an inaccurate and distorted view of those marriages in which significant marital misconduct is present. The court should be free to consider noneconomic fault in cases where it imposed a substantial burden upon the innocent party during the marriage.

While this article argues in favor of considering at least serious episodes of noneconomic misconduct in dividing marital property, it is not intended primarily as a discussion of policy. The policy issues surrounding fault have been discussed in a number of academic articles in recent years, and strong opinions have been stated on both sides of the debate. The leading proponent of the majority rule is Ira M. Ellman. See Ira M. Ellman, The Place of Fault in a Modern Divorce Law, 28 Ariz. St. L.J. 773 (1996). Not surprisingly, Ellman is one of the leading advocates of a primarily economic approach to the division of property. For views closer to those of the author, doubting the wisdom or feasibility of terminating a marriage without considering its personal as well as economic side, see Peter N. Swisher, Reassessing Fault Factors in No-Fault Divorce, 31 Fam. L.Q. 269 (1997). For a more conservative approach, emphasizing moral factors and asking hard questions about no-fault divorce generally, see Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 B.Y.U. L. Rev. 79.

Threshold for Consideration

The argument in favor of considering fault stops well short of holding that fault is always relevant. The majority rule is clearly correct to the extent that fault will be irrelevant in some, indeed probably the majority, of all divorce cases. The split is not a division between those who believe that fault is and those who believe it is not relevant; it is a split between those who believe that fault is never relevant (the majority), and those who believe that fault is sometimes relevant (the minority).

Since the minority rule provides that fault is relevant only sometimes, it must obviously arrive at a workable definition of "sometimes." Most states leave this issue to the trial court's discretion, holding in essence that fault is always potentially relevant, but that the trial court is free to give it no weight.

In a few states, however, the law provides a legal threshold which must be met before fault can be considered. The leading such state is New York:

Arguably, the court may consider marital fault under factor 10, "any other factor which the court shall expressly find to be just and proper" (Domestic Relations Law 236[B][5][d][10]; see, Scheinkman, 1981 Practice Commentary, McKinney's Cons. Laws of N.Y., Book 14, Domestic Relations Law C236B:13, pp. 205-206 [1977-1984 Supp. Pamphlet] ). Except in egregious cases which shock the conscience of the court, however, it is not a "just and proper" factor for consideration in the equitable distribution of marital property (Blickstein v. Blickstein, 99 A.D.2d 287, 292, 472 N.Y.S.2d 110, appeal dismissed 62 N.Y.2d 802 . . .). That is so because marital fault is inconsistent with the underlying assumption that a marriage is in part an economic partnership and upon its dissolution the parties are entitled to a fair share of the marital estate, because fault will usually be difficult to assign and because introduction of the issue may involve the courts in time-consuming procedural maneuvers relating to collateral issues.

O'Brien v. O'Brien, 66 N.Y.2d 576, 589, 489 N.E.2d 712, 719, 498 N.Y.S.2d 743, 750 (1985).

[W]ith respect to the concept of egregious behavior, marital fault may also be understood as a voluntary act in the context of the marriage that causes some social harm. The difference between ordinary marital fault and egregious marital fault, however, concerns the relative importance of the particular social value involved. The more highly the preservation of an interest is valued by society, the more likely it is that the offensive conduct in question will be deemed egregious.

A judge, therefore, in determining whether particular conduct amounts to egregious marital fault, must decide whether the social interest compromised by the offending spouse's conduct is so fundamental that the court is compelled to punish the offending spouse by affecting the equitable distribution of the marital assets.

McCann v. McCann, 156 Misc. 2d 540, 546, 593 N.Y.S.2d 917, 921 (Sup. Ct. 1993), adopted by Havell v. Islam, 301 A.D.2d 339, 345, 751 N.Y.S.2d 449, 453 (2002).

Fault, as a term of art, is not to be considered in the determination of the financial aspects of the dissolution of the marriage, nor should a penalty be imposed as a result of such consideration. The only exception would be some rare and unusual situation where a party's conduct is so gross and extreme that failure to penalize therefor would, itself, be inequitable.

In re Marriage of Sommers, 246 Kan. 652, 658-59, 792 P.2d 1005, 1010 (1990). The court cited legislative history indicating that spousal abuse was one significant type of fault which the Kansas legislature believed that the courts should be willing to consider.

For cases finding the New York threshold met, see Havell v. Islam, 186 Misc. 2d 726, 718 N.Y.S.2d 807 (Sup. Ct. 2000) (pattern of extreme domestic violence is sufficient substantial fault to merit consideration as a division factor), aff'd, 301 A.D.2d 339, 751 N.Y.S.2d 449 (2002); Brancoveanu v. Brancoveanu, 145 A.D.2d 395, 535 N.Y.S.2d 86 (1988) (attempted murder); and Wenzel v. Wenzel, 122 Misc. 2d 1001, 472 N.Y.S.2d 830 (Sup. Ct. 1984) (attempted murder).

For cases finding the New York threshold not met, see Newton v. Newton, 246 A.D.2d 765, 667 N.Y.S.2d 778 (1998) (adultery); Fuchs v. Fuchs, 216 A.D.2d 648, 628 N.Y.S.2d 193 (1995) (husband stalked the wife, repeatedly threatened to kill her, and engaged her in a high-speed car chase); Kellerman v. Kellerman, 187 A.D.2d 906, 590 N.Y.S.2d 570 (1992) (verbal harassment); and Stevens v. Stevens, 107 A.D.2d 987, 484 N.Y.S.2d 708 (1985) (adultery and minor physical abuse).

Limits on Fault

Where no fault threshold exists, the courts still place limits on the consideration which should be given to fault. There is general agreement that the purpose of considering fault is to recognize the additional burden which one party's fault has placed upon the other. An award which is based purely upon a desire to punish a guilty spouse is therefore error. Young v. Young, 609 S.W.2d 785 (Tex. 1980); Read v. Read, 594 P.2d 871 (Utah 1979). Courts which consider fault are applying principles closer to the compensatory setting of tort law, not the punitive setting of criminal law.

Where the facts show that no additional burden was imposed by either party's conduct, the fault should be given no weight. Indeed, it might be more accurate to state that acts which do not burden the other party are not faulty to begin with. For cases finding that fault was not present because no unreasonable burden was imposed, see Freedenburg v. Freedenburg, 123 Md. App. 729, 720 A.2d 948 (1998) (mere fact that one spouse dominates the other is not fault; court cited the marriage of Queen Victoria and the second marriage of General McArthur as instances of solid and successful marriages in which one spouse was dominant); McDougal v. McDougal, 451 Mich. 80, 545 N.W.2d 357 (1996) (husband's failure to agree to have children was not fault); Roberts v. Roberts, 652 S.W.2d 325 (Mo. Ct. App. 1983) (husband's preoccupation with hunting and racing cars was not fault); and Denninger v. Denninger, 34 Mass. App. Ct. 429, 612 N.E.2d 262 (1993) (husband's dietary fetishes were not fault).

In some situations, fault is merely a symptom and not the underlying cause of the marital breakdown. In these situations, fault often does not significantly burden the innocent spouse, and so should not be considered. See Smoot v. Smoot, 233 Va. 435, 443, 357 S.E.2d 728, 732 (1987) (trial court did not err by giving no weight to husband's desertion; desertion was "the last unhappy event in a marital relationship long since dissolved in fact"); Wells v. Wells, 567 So. 2d 361 (Ala. Civ. App. 1990) (awarding husband 65% of property despite adultery; misconduct had not contributed to the marital breakdown); Phillips v. Phillips, 504 So. 2d 412 (Fla. Dist. Ct. App. 1987) (error to reduce wife's share of assets because of her brief extramarital affair, where wife eventually married the man and the affair had no effect upon the marriage); In re Marriage of Chorum, 959 S.W.2d 900 (Mo. Ct. App. 1997) (approving equal division; husband committed adultery, but his adultery did not cause marital breakdown; key factor in demise of marriage was wife's lack of attention to husband); In re Marriage of Berger, 950 S.W.2d 307 (Mo. Ct. App. 1997) (trial court properly gave minimal weight to adultery which was committed only in the final year of the marriage; no evidence that adultery placed additional burden on the marital relationship); In re Marriage of Gustin, 861 S.W.2d 639 (Mo. Ct. App. 1993) (upon seeing strange car parked in husband's driveway, wife chopped down husband's door with a hatchet and discovered his paramour hiding inside; error to treat wife's conduct as a division factor, as it imposed no burden on the marital relationship).

The above rule is applied particularly often to postseparation adultery. See Mosley v. Mosley, 747 So. 2d 894 (Ala. Civ. App. 1999) (trial court properly refused to attach substantial weight to postseparation adultery); Knowles v. Knowles, 185 Mich. App. 497, 462 N.W.2d 777, 779 (1990) ("[I]t was improper to the trial court to hold divorcing parties to a standard of morality or behavior appropriate for marital partners"); Smith v. Smith, 294 S.C. 194, 363 S.E.2d 404 (Ct. App. 1987); Hatchette v. Hatchette, 57 S.W.3d 884 (Mo. Ct. App. 2001) (proper to award wife 58% of marital estate, despite her postseparation adultery; adultery placed no burden on marriage); Messer v. Messer, 41 S.W.3d 640 (Mo. Ct. App. 2001) (trial court did not err in holding that postseparation adultery placed no burden on marriage). Where postseparation adultery does burden the innocent spouse, however, it can be considered. See Carrow v. Carrow, 642 So. 2d 901 (Miss. 1994) (postseparation adultery was one factor the court could consider in dividing the marital estate); Hensarling v. Hensarling, 824 So. 2d 583 (Miss. 2002) (affirming unequal division in husband's favor, based upon wife's postseparation adultery; husband received 65% of identified assets, but some assets had been omitted, so final percentage division is unclear).

Situations may exist in which fault did significantly burden the innocent party, but the marriage ultimately broke down for other reasons. In these cases, fault may be considered:

[M]arital misconduct does not have to cause or contribute to cause the breakup of the marriage in order to be considered as a justification for a disproportionate award of marital property. While misconduct found to cause or contribute to cause the breakup of a marriage would logically constitute an added burden, misconduct not rising to that level could still be found to constitute an added burden on the marriage, justifying a disproportionate division of marital property.

Ballard v. Ballard, 77 S.W.3d 112, 118 (Mo. Ct. App. 2002).

Because the issue is the extent of the burden, the court may consider fault which is not the actual ground on which the parties were divorced. See Charles v. Charles, 788 F.2d 960 (3d Cir. 1986) (Virgin Islands law); Quillin v. Quillin, 652 So. 2d 294 (Ala. Civ. App. 1994) (court can consider fault even where divorce is awarded on no-fault grounds); Driste v. Driste, 738 So. 2d 763 (Miss. Ct. App. 1998) (trial court erred by failing to consider fault in no-fault divorce action); In re Walling, 777 S.W.2d 643, 644 (Mo. Ct. App. 1989); Connors v. Connors, 310 S.C. 76, 425 S.E.2d 65 (Ct. App. 1992). A few states hold that fault may not be considered if the divorce is awarded on no-fault grounds, even if fault is present on the facts. See Boucher v. Boucher, 131 N.H. 377, 380, 553 A.2d 313, 315 (1988); Phillips v. Phillips, 75 S.W.3d 564 (Tex. App. 2002) (over a better-reasoned dissent). This rule encourages the parties to spend needless time and effort litigating the basis on which the divorce will actually be granted. The relevant point is the burden imposed by the harm, and not whether the harm was actually the event which provoked the marital dissolution.

Misconduct can be a division factor even where the spouse who relied on it did not mention it in his or her pleadings. Allen v. Allen, 118 F. Supp. 2d 653 (D.V.I. 2000) (Virgin Islands law); State ex rel. M.D.K. v. Dolan, 968 S.W.2d 740 (Mo. Ct. App. 1998).

Of course, the court must consider the extent to which each party's misconduct burdened the other. Where both parties' conduct imposed equal burdens upon the other, fault should have no net effect on the award. See Wilkerson v. Wilkerson, 719 So. 2d 235 (Ala. Civ. App. 1998) (parties' respective misconduct was offsetting); Cohee v. Cohee, 26 Kan. App. 2d 756, 994 P.2d 663 (1999); Sinopole v. Sinopole, 871 S.W.2d 46 (Mo. Ct. App. 1993) (where both spouses were guilty of adultery, trial court did not err in giving adultery no weight for purposes of property division); Abernathy v. Fehlis, 911 S.W.2d 845 (Tex. App. 1995) (where both parties were equally at fault, fault was not a factor in dividing assets). There is precedent for offsetting even serious misconduct. See Valenza v. Valenza, 16 Fam. L. Rep. (BNA) 1155 (N.Y. Sup. Ct. 1990) (husband raped wife; wife then hired third persons to kill the husband; husband survived, despite being severely beaten and shot six times; both parties were held equally guilty, and the division turned upon other factors). Where fault is mutual but unequal, the court must logically consider the net burden placed upon the more disadvantaged spouse. See Kahn v. Kahn, 839 S.W.2d 327 (Mo. Ct. App. 1992) (wife had a single extramarital affair, while husband had multiple numbers; proper to award wife 58.8% of the marital estate).

Likewise, fault which has been condoned by the innocent spouse is not relevant to equitable distribution. See Hewitt v. Hewitt, 637 So. 2d 1382 (Ala. Civ. App. 1994) (where parties' children were grown, any problems with wife's child-rearing practices were condoned years ago and were not a factor in dividing their property).

Misconduct which occurred before the marriage is obviously not a valid division factor. Brewer v. Brewer, 695 So. 2d 1 (Ala. Civ. App. 1996); Escudero v. Escudero, 739 So. 2d 688 (Fla. Dist. Ct. App. 1999) (fault in prior marriage between same parties).

As part of the general rule against punitive awards, fault must be viewed in context and not overemphasized. E.g., Givens v. Givens, 599 S.W.2d 204 (Mo. Ct. App. 1980). It will be a rare case where the burden placed on one party by the other's misconduct will be so substantial as to overcome all of the other party's positive contributions to the marriage. A total denial of equitable distribution, based only upon fault, is almost always error. E.g., Carrow v. Carrow, 642 So. 2d 901 (Miss. 1994) (error to deny all property division because of wife's postseparation adultery); Tucker v. Tucker, 806 S.W.2d 758 (Mo. Ct. App. 1991) (error to award almost all of the marital property to husband merely because wife had committed adultery).

Fault is especially unlikely to be a dominating factor after a long marriage to which both parties have substantially contributed. See Kuester v. Kuester, 633 S.W.2d 281 (Mo. Ct. App. 1982) (adultery less relevant in marriages of long duration); In re Schulte, 546 S.W.2d 41 (Mo. Ct. App. 1977) (adulterous relationship late in long marriage not a major factor); Hardwick v. Hardwick, 303 S.C. 256, 399 S.E.2d 791 (Ct. App. 1990) (trial court properly refused to award husband more than 65% of assets; wife's adultery had a negative effect on the marriage during the last few years, but her overall contribution was still positive).

Weight

The weight given to fault is a matter for the trial court's discretion, e.g., Smoot v. Smoot, 233 Va. 435, 357 S.E.2d 728 (1987), and varies greatly according to the facts of the case. The best way to get a feel for likely awards is to examine a number of reported cases in which similar fault was present. The following list provides representative examples of divisions in which various types of fault were relevant.

Attempted Murder. Fault has been a strong factor in cases where one spouse murdered or attempted to murder the other. A New York court found such fault sufficiently egregious to meet that state's strict threshold for considering fault in property division cases. Brancoveanu v. Brancoveanu, 145 A.D.2d 395, 535 N.Y.S.2d 86 (1988); see also Stover v. Stover, 287 Ark. 116, 696 S.W.2d 750 (1985) (to ignore fact that wife conspired to murder husband would lead to absurd result); Mellon Bank, N.A. v. Holub, 400 Pa. Super. 360, 583 A.2d 1157 (1990) (husband forged wife's signature on a $50,000 loan and then tried to hire a third party to kill her; awarding all marital property to wife, even though noneconomic fault technically not a factor). But see Mosbarger v. Mosbarger, 547 So. 2d 188 (Fla. Dist. Ct. App. 1989) (court could consider only the economic effects of wife's unsuccessful attempt to murder husband; punishment and deterrence of such actions should be left to the criminal law).

Spousal Abuse. See, e.g., Crowe v. Crowe, 602 So. 2d 441 (Ala. Civ. App. 1992) (husband was a sporadically employed alcoholic who physically abused wife, while wife worked for 34 years of the 38-year marriage and made most of the financial contributions; proper to award wife substantially all of the divisible estate); Bleuer v. Bleuer, 59 Conn. App. 167, 755 A.2d 946 (2000) (80% to wife proper; husband abused wife and three children, and destroyed his own marital property business); Szesny v. Szesny, 197 Ill. App. 3d 966, 557 N.E.2d 222 (1990) (trial court properly awarded all of the parties' debts to abusive husband); In re Coomer, 622 N.E.2d 1315 (Ind. Ct. App. 1993) (proper to award abused wife 60% of marital estate); Handrahan v. Handrahan, 28 Mass. App. Ct. 167, 547 N.E.2d 1141 (1989) (error to award physically abusive husband 25% of wife's premarital home, which was parties' only substantial asset; wife deserved entire ownership of home); Crews v. Crews, 949 S.W.2d 659 (Mo. Ct. App. 1997) (husband physically abused wife; affirming division which husband claimed gave wife 88% of marital property, and wife claimed gave her 67% of marital property); Carter v. Carter, 940 S.W.2d 12 (Mo. Ct. App. 1997) (awarding 64% of marital property to abused wife who had also spent separate property for benefit of marriage; expressly holding that provocation, even if present, was not a defense to spousal abuse); Dodson v. Dodson, 904 S.W.2d 3 (Mo. Ct. App. 1995) (persistent abuse, including threats to kill; approving unequal division of unspecified size); York v. York, 823 S.W.2d 45 (Mo. Ct. App. 1991) (where husband abused wife physically and verbally, proper to award her 68% of marital estate); Yount v. Yount, 821 S.W.2d 876 (Mo. Ct. App. 1991) (abused spouse received between 60% and 75% of the marital assets); Tully v. Tully, 813 S.W.2d 926 (Mo. Ct. App. 1991) (proper to award 55% of property to abused wife); Buchheit v. Buchheit, 768 S.W.2d 641 (Mo. Ct. App. 1989) (innocent wife received 75% of marital property, due in part to husband's abuse); Havell v. Islam, 186 Misc. 2d 726, 718 N.Y.S.2d 807 (Sup. Ct. 2000) (pattern of domestic violence is a valid division factor), aff'd, 301 A.D.2d 339, 345, 751 N.Y.S.2d 449, 453 (2002); Reiser v. Reiser, 621 N.W.2d 348 (N.D. 2001) (marriage lasted only four years, but husband was guilty of substantial physical abuse and had substantial separate property under prenuptial agreement; proper to award husband $141,278.25, and wife $139,226.99); Weigel v. Weigel, 604 N.W.2d 462 (N.D. 2000) (dividing marital home equally after marriage of only three years, despite husband's separate down payment; husband was guilty of spousal abuse during the marriage); Viti v. Viti, 773 A.2d 893 (R.I. 2001) (affirming award to wife of 60% of marital estate, where husband was guilty of physical abuse and had greater income); Thompson v. Thompson, 642 A.2d 1160 (R.I. 1994) (proper to award abused wife 65% of marital estate); West v. West, 315 S.C. 44, 431 S.E.2d 603 (Ct. App. 1993) (awarding wife 40% of home after five-year marriage; husband guilty of physical abuse); Williams v. Williams, 297 S.C. 208, 375 S.E.2d 349 (Ct. App. 1988) (awarding wife her entire pension, relying partly upon husband's physical abuse); Johnson v. Johnson, 296 S.C. 289, 372 S.E.2d 107 (Ct. App. 1988) (50% award to abused homemaker wife after marriage of just over one year); Faram v. Gervitz-Faram, 895 S.W.2d 839 (Tex. App. 1995) (awarding husband only 27.1% of the community estate, where he had abused wife during marriage, wasted marital assets, and refused to cooperate with discovery requests). Judging from the number of citations alone, spousal abuse rivals adultery as the type of fault most commonly used to justify an unequal division.

Spousal abuse is not disproven by the wife's failure to leave the husband immediately after the abuse started, since many battered women find it difficult or impossible to get out of an abusive situation. Blair v. Blair, 154 Vt. 201, 575 A.2d 191 (1990) (trial court erred by treating wife's failure to leave abusive husband for four years as a factor against her credibility). An abused spouse who does leave the home should not be penalized for doing so. Comins v. Comins, 33 Mass. App. Ct. 28, 595 N.E.2d 804 (1992); Lee v. Lee, 191 Mich. App. 73, 477 N.W.2d 429 (1991).

Isolated incidents of spousal abuse probably should not have much impact on property division. See Comins v. Comins, 33 Mass. App. Ct. 28, 595 N.E.2d 804 (1992).

Child Abuse. See Boettcher v. Boettcher, 870 S.W.2d 876 (Mo. Ct. App. 1993) (approving unspecified unequal division in favor of wife, where husband had sexually abused wife's daughter throughout her teenage years); In re Usrey, 781 S.W.2d 556 (Mo. Ct. App. 1989) (where husband severely abused children, error to award him 61% of the marital assets); Finch v. Finch, 825 S.W.2d 218 (Tex. App. 1992) (awarding wife 65% of property where husband had abused wife and children and had higher earning capacity); Leonard v. Leonard, 150 Vt. 202, 552 A.2d 394 (1988) (proper to award wife virtually all marital property, where husband had sexually abused stepchild, and wife had little future earning capacity).

Substance Abuse. Alcoholism, in and of itself, is generally not viewed as fault. Science increasingly views alcoholism as a physical disease, and not as a moral failure. See Barry v. Barry, 511 So. 2d 649 (Fla. Dist. Ct. App. 1987) (alcoholism is an illness; extra burden placed on nonalcoholic partner gives no more rights than the extra burden imposed by any other illness); In re Marriage of Nixon, 126 Or. App. 381, 868 P.2d 1352 (1994) (error to make unequal division in husband's favor; wife's alcoholism was an illness which both parties worked together to defeat).

The tangible effects of alcoholism, however, are a proper consideration. In other words, negative contributions which burden the other party are always a division factor, regardless of whether they do or do not result from alcoholism. See Crowe v. Crowe, 602 So. 2d 441 (Ala. Civ. App. 1992) (alcoholic husband guilty of spousal abuse); Handrahan v. Handrahan, 28 Mass. App. Ct. 167, 547 N.E.2d 1141 (1989) (alcoholic husband was guilty of spousal abuse); In re Bulanda, 451 N.W.2d 15 (Iowa Ct. App. 1989) (proper to give wife more than one-half of the parties' home, which was their major asset; husband was recovering from his alcoholism but had made few contributions to the marriage); Welling v. Welling, 233 Mich. App. 708, 592 N.W.2d 822 (1999) (proper to award wife 60% of the marital estate, where husband's behavior under the influence of alcohol was a substantial negative contribution to the marriage); In re Marriage of Clark, 801 S.W.2d 496 (Mo. Ct. App. 1990) (awarding unequal division to wife; husband consumed alcohol excessively and was in better financial condition than wife); Carpenter v. Carpenter, 61 Ohio App. 3d 584, 573 N.E.2d 698 (1988) (awarding wife unequal division because of husband's alcohol abuse); Peirson v. Calhoun, 308 S.C. 246, 417 S.E.2d 604 (Ct. App. 1992) (error not to consider economic impact of alcoholism); Chilkott v. Chilkott, 158 Vt. 193, 607 A.2d 883 (1992) (awarding wife $220,000 in assets and husband only $197,000 in assets; relying on husband's alcoholism and higher earning capacity); In re Clark, 13 Wash. App. 805, 538 P.2d 145 (1975) (dissipation of assets caused by alcoholism is economic fault).

The trial court is not, of course, required to believe all allegations of alcoholism. See Collura v. Puglisi, 204 A.D.2d 589, 612 N.Y.S.2d 202 (1994) (trial court properly disbelieved wife's allegation that husband was an alcoholic and compulsive gambler).

Drug abuse is generally treated in the same manner as alcohol abuse. Thus, while addiction itself may not constitute fault, the court is free to consider any negative consequences of the addiction on either the other spouse or the marital estate. See Dews v. Dews, 632 A.2d 1160 (D.C. 1993) (equal division proper; wife acquired a significant part of the marital estate by gift from her father, but this factor was offset by wife's abuse of cocaine during the marriage).

Adultery. See Ex parte Drummond, 785 So. 2d 358 (Ala. 2000) (trial court properly refused to divide husband's inherited property, even though court had the power to do so on the facts, where wife was guilty of adultery); Phillips v. Phillips, 666 So. 2d 526 (Ala. Civ. App. 1995) (wife was clinically depressed due to husband's adultery and harassment; proper to award her the entire marital home); Mangina v. Mangina, 585 So. 2d 1383 (Ala. Civ. App. 1991) (awarding less than 3% of assets to adulterous husband, where almost all of the assets were inherited by the wife and the husband did not work vigorously during the marriage); Greco v. Greco, 70 Conn. App. 735, 799 A.2d 331 (2002) (where divorce was granted for husband's adultery, proper to award wife 67% of divisible estate); Hanaway v. Hanaway, 208 Mich. App. 278, 527 N.W.2d 792 (1995) (where marriage broke down because of wife's extramarital affair, proper to award wife only 40% of the marital estate); Nelson v. Nelson, 25 S.W.3d 511 (Mo. Ct. App. 2000) (awarding 75% of property to wife, who received primary custody of children and needed marital home, where husband had committed adultery); Poole v. Poole, 977 S.W.2d 940 (Mo. Ct. App. 1998) (awarding wife 70% of the marital estate, where husband was guilty of adultery and occasional physical abuse, and wife had been homemaker during 26-year marriage); Halupa v. Halupa, 943 S.W.2d 272 (Mo. Ct. App. 1997) (proper to award wife 80% of marital property; husband committed adultery and dissipated marital funds to pay gambling debts); Lawrence v. Lawrence, 938 S.W.2d 333 (Mo. Ct. App. 1997) (proper to award wife 60% of the marital property and only 16% of the marital debt, where husband committed adultery and had larger income); Swoboda v. Swoboda, 904 S.W.2d 106 (Mo. Ct. App. 1995) (where wife committed adultery, proper to award husband 60% of marital estate, plus reimbursement for certain mortgage payments); Gray v. Gray, 654 S.W.2d 309 (Mo. Ct. App. 1983) (wife awarded 74% of marital property due to husband's adultery; four-year marriage); Mellum v. Mellum, 607 N.W.2d 580 (N.D. 2000) (approving decision awarding wife 65% of the marital estate, relying in part on fact that husband committed adultery and then participated in marital counseling in bad faith, with no true intention to try to preserve the marriage; dissent would have held that bad-faith counseling was not misconduct); Koziol v. Koziol, 720 A.2d 230 (R.I. 1998) (where husband committed adultery, proper to award wife 58% of marital estate); Hardwick v. Hardwick, 303 S.C. 256, 399 S.E.2d 791 (Ct. App. 1990) (awarding 65% of property to husband; wife's adultery and failure to support husband in career had negative economic effect on marriage); Feddersen v. Feddersen, 68 F. Supp. 2d 585 (D.V.I. 1999) (applying Virgin Islands law) (where husband committed adultery, awarding wife 75% of the marital home).

Repeated adultery is generally a stronger division factor than a single relationship. See Zacher v. Zacher, 493 N.W.2d 704 (N.D. Ct. App. 1992) (proper to award only 38.5% of property to wife who was guilty of repeated adultery); Singley v. Singley, 2002 WL 31320491 (Miss. 2002) (error to award 50% of marital estate to wife, who was guilty of repeated adultery). Repeated adultery has been considered by at least one court as a division factor even though there was not sufficient evidence to prove adultery as a ground for divorce. See In re Walling, 777 S.W.2d 643, 644 (Mo. Ct. App. 1989) (wife received 65% of the marital property due to husband's excessive drinking and "doubtful associations with women other than his wife").

Conduct with persons of the opposite sex, which falls short of constituting adultery, is not a division factor. See Wofford v. Wofford, 991 S.W.2d 194 (Mo. Ct. App. 1999) (trial court properly failed to consider fact that wife had been hugged and kissed by another man; adultery was not proven).

Adultery has been considered in a good number of cases, but many of the decisions come from the same group of conservative southern jurisdictions. Unless a given jurisdiction has a strong tradition of placing substantial weight upon adultery, it is questionable whether a significantly unequal division should be expected, particularly if the adultery did not cause the marital breakdown or otherwise place a notable burden upon the innocent spouse. The above citations can be contrasted with the list of citations for spousal abuse, which is just as long in size, but which is somewhat more broadly based.

Desertion. See Proctor v. Proctor, 712 So. 2d 331 (Ala. Civ. App. 1997) (where wife left marriage and did not seek counseling, proper to give husband 68% of marital estate); Lesko v. Lesko, 184 Mich. App. 395, 457 N.W.2d 695 (1990) (husband left marital home with a substantial portion of parties' funds and refused to support wife for the next few months); McDowell v. McDowell, 635 N.W.2d 139 (N.D. 2001) (proper to award wife $34,872 and husband only $28,337; husband abandoned wife and failed to support family during pendency of action); DiOrio v. DiOrio, 751 A.2d 747 (R.I. 2000) (65% award to wife was proper, where husband deserted wife by living a separate life under the same roof, and husband's financial contributions to marriage were lower than those of wife, particularly late in the marriage); cf. Breen v. Breen, 118 Conn. App. 166, 557 A.2d 140 (1989) (failure to attempt reconciliation is fault for purposes of alimony award; property division not directly considered, because appellant did not raise it).

There are very few cases openly refusing to consider desertion, but the lack of strong positive case law suggests strongly that desertion will not be a major factor unless accompanied by other misconduct, such as nonsupport.

Cruelty. See Ryall v. Byrd, 903 S.W.2d 683 (Mo. Ct. App. 1995) (husband called wife names, destroyed her property, humiliated her at professional functions, and threatened to kill her; unequal division in wife's favor was proper); In re Letendre, ___ N.H. ___, 815 A.2d 938 (2002) (proper to award wife roughly 68% of the property, where husband had persistently verbally abused her during the marriage, and she was full-time homemaker with substantial financial need).

In Murphy v. Murphy, 714 A.2d 576 (R.I. 1998), the husband had problems with the wife's child from a prior marriage. The trial court found that these problems resulted from the wife's failure to control the son, and awarded the wife only 45% of the marital estate. The decision was affirmed on appeal.

Nonsupport. See Anderson v. Anderson, 656 S.W.2d 826 (Mo. Ct. App. 1983) (husband's failure to support family for five years, which caused severe hardship to wife and children, constituted marital misconduct). But cf. Lolli-Ghetti v. Lolli-Ghetti, 165 A.D.2d 426, 568 N.Y.S.2d 29 (1991) (failure to pay temporary alimony is not an equitable distribution factor).

Failure to Reconcile. In Burns v. Burns, 41 Conn. App. 716, 677 A.2d 971 (1996), the husband told the wife that there was hope for the marriage, when in fact he was committed to a relationship with another woman. The court held that the husband's conduct was relevant to property division. See also Mellum v. Mellum, 607 N.W.2d 580 (N.D. 2000) (approving decision awarding wife 65% of the marital estate, relying in part on fact that husband committed adultery and then participated in marital counseling in bad faith, with no true intention to try to preserve marriage; dissent would have held that bad-faith counseling was not misconduct); cf. Breen v. Breen, 118 Conn. App. 166, 557 A.2d 140 (1989) (failure to attempt reconciliation is fault for purposes of alimony award; property division was not directly considered because appellant did not raise it).

Conclusion

A narrow majority of courts continue to hold that fault can be considered only when it has an economic impact. The minority rule permitting consideration of fault has significant support, however, among both court decisions and commentators.

Those who favor consideration of fault must continue to stress that fault should not be used to punish, and that divorce courts should not be required to hear endless testimony about minor episodes of misconduct which matter only to the parties involved. The purpose of considering fault is to assess accurately the contributions of the parties to the marriage. Nonmonetary contributions are regularly considered all across the country when fault is not involved. When the courts refuse to consider nonmonetary contributions which actually burden the innocent spouse, solely because fault is involved, they are not accurately measuring the contributions of both parties to the marriage.

It is unusual, however, that the conduct of the parties during the marriage will significantly burden one spouse more than the other. In most failed marriages, there is ample fault on the part of both parties. The great appeal of the threshold approach is that it prevents the assessment of minor episodes of misconduct, while still allowing major events such as spousal abuse to influence the division. Indeed, many states which consider fault as a factor follow a threshold approach informally, as trial and appellate judges insist upon evidence of a significant burden before giving material weight to fault. Formal articulation of a threshold approach may make consideration of at least major misconduct more attractive to courts and legislatures in states in which misconduct is presently not considered.

Relevance of Marital Misconduct
A State-by-State Survey

The purpose of this survey is to set forth existing statutory and case law on the relevance of marital misconduct. Marital misconduct is defined in its most narrow sense as misconduct which has no economic impact on the marriage. There is general agreement in all states that the court may consider economic misconduct.

The table makes a point of listing those few community property states which still require an equal division. Where the court must divide the property equally, the issue of whether fault can be considered never arises. A fair measurement of the states which have chosen to consider or not consider fault should include only those states in which the court is permitted to divide marital or community property equitably.

Summary

Rule Jurisdictions
Misconduct Relevant 18
Misconduct Relevant, With Threshold 3
Unclear 1
Misconduct Not Relevant 27
Equal Division Required 3


State Rule Authority
AL Relevant Ex parte Drummond, 785 So. 2d 358 (Ala. 2000)
AK Not Relevant Jones v. Jones, 942 P.2d 1133 (Alaska 1997)
AZ Not Relevant Ariz. Stat. Ann. 25-318 (Westlaw 2003)
AR apparently Relevant, with threshold Stover v. Stover, 287 Ark. 116, 696 S.W.2d 750 (1986) (considering conspiracy to murder); Keathley v. Keathley, 76 Ark. App. 150, 162, 61 S.W.3d 219, 227 (2001) (noting that fault was not relevant under prior statute; under present statute, the division may "be based on action or the failure to act, which in a literal sense of the word, could be considered fault"; citing Stover as an example); no appellate decisions considering ordinary types of fault
CA Not Relevant (mandatory equal division of community property) Cal. Fam. Code 2550 (Westlaw 2003)
CO Not Relevant In re Marriage of Casias, 962 P.2d 999 (Colo. Ct. App. 1998)
CT Relevant Sweet v. Sweet, 190 Conn. 657, 462 A.2d 1031 (1983)
DE Not Relevant Del. Code Ann. tit. 13, 1513(a) (Westlaw 2003)
DC Relevant Dews v. Dews, 632 A.2d 1160 (D.C. 1993)
FL Not Relevant Childers v. Childers, 640 So. 2d 108 (Fla. Dist. Ct. App.1994)
GA Relevant Peters v. Peters, 248 Ga. 490, 283 S.E.2d 454 (1981)
HI Not Relevant Markham v. Markham, 80 Haw. 274, 909 P.2d 602 (Ct. App. 1996)
ID Not Relevant Present statute (Idaho Code Ann. 32-712 (Westlaw 2003)) is silent on fault, which prior statute expressly listed as a factor; no appellate case law considering fault; see also Olsen v. Olsen, 98 Idaho 10, 17, 557 P.2d 604, 611 (1976) (Shepard, J., dissenting) ("[T]he legislature has eliminated fault from consideration in disposing of community property upon divorce")
IL Not Relevant In re Getautas, 189 Ill. App. 3d 148, 544 N.E.2d 1284 (1989)
IN Not Relevant R.E.G. v. L.M.G., 571 N.E.2d 298 (Ind. Ct. App. 1991)
IA Not Relevant In re Marriage of Goodwin, 606 N.W.2d 315 (Iowa 2000)
KS Relevant with threshold; "rare and unusual situation[s] where a party's conduct is so gross and extreme that failure to penalize therefor would, itself, be inequitable" In re Marriage of Sommers, 246 Kan. 652, 658-59, 792 P.2d 1005, 1010 (1990)
KY Not Relevant Brosick v. Brosick, 974 S.W.2d 498 (Ky. Ct. App. 1998)
LA Not Relevant (mandatory equal division of community property) La. Rev. Stat. Ann. 9:2801(A)(4)(b)
ME Not Relevant Boyd v. Boyd, 421 A.2d 1356 (Me. 1980)
MD Relevant Freedenburg v. Freedenburg, 123 Md. App. 729, 720 A.2d 948 (1998)
MA Relevant Ross v. Ross, 385 Mass. 30, 430 N.E.2d 815 (1982)
MI Relevant Sparks v. Sparks, 440 Mich. 141, 485 N.W.2d 893 (1992)
MS Relevant Carrow v. Carrow, 642 So. 2d 901 (Miss. 1994)
MO Relevant Fields v. Fields, 643 S.W.2d 611 (Mo. Ct. App. 1982)
MT Not Relevant In re Marriage of Hanni, 299 Mont. 20, 997 P.2d 760 (2000)
NE apparently Not Relevant No appellate case law considering fault; fault is irrelevant to alimony, e.g., Else v. Else, 219 Neb. 878, 367 N.W.2d 701 (1985), and Neb. Rev. Stat. Ann. 42-365 (Westlaw 2003) uses the same factors to determine both alimony and property division
NV Not Relevant Wheeler v. Upton-Wheeler, 113 Nev. 1185, 946 P.2d 200 (1997)
NH essentially Relevant Chabot v. Chabot, 126 N.H. 793, 795, 497 A.2d 851, 852 (1985) ("if a fault ground is proven to be the primary cause of the marital breakdown"). But cf. Boucher v. Boucher, 131 N.H. 377, 380, 553 A.2d 313, 315 (1988) ("[F]ault may not be considered in making a division of property following a no-fault divorce decree").
NJ Not Relevant Chalmers v. Chalmers, 65 N.J. 186, 320 A.2d 478, 483 (1974)
NM Not Relevant (mandatory equal division of community property) Trego v. Scott, 125 N.M. 323, 961 P.2d 168 (Ct. App. 1998)
NY Relevant with threshold; "egregious cases which shock the conscience of the court" O'Brien v. O'Brien, 66 N.Y.2d 576, 589, 489 N.E.2d 712, 719, 498 N.Y.S.2d 743, 750 (1985)
NC Not Relevant Smith v. Smith, 314 N.C. 80, 331 S.E.2d 682 (1985)
ND Relevant Wald v. Wald, 556 N.W.2d 291 (N.D. 1996)
OH Not Relevant Lemon v. Lemon, 42 Ohio App. 3d 142, 537 N.E.2d 246 (1988)
OK Not Relevant Smith v. Smith, 847 P.2d 827 (Okla. Ct. App. 1993)
OR Not Relevant In re Koch, 58 Or. App. 252, 648 P.2d 406 (1982)
PA Not Relevant Perlberger v. Perlberger, 426 Pa. Super. 245, 626 A.2d 1186 (1993)
RI Relevant Conley v. Conley, 508 A.2d 676 (R.I. 1986)
SC Relevant Woodside v. Woodside, 290 S.C. 366, 350 S.E.2d 407 (1986)
SD Not Relevant S.D. Codified Laws 25-4-45.1 (Westlaw 2003)
TN Not Relevant Bowman v. Bowman, 836 S.W.2d 53 (Tenn. Ct. App. 1991)
TX Relevant Young v. Young, 609 S.W.2d 758 (Tex. 1980)
UT unclear see notes
VT Relevant Daitchman v. Daitchman, 145 Vt. 145, 483 A.2d 270 (1984)
VA Relevant Smoot v. Smoot, 233 Va. 435, 357 S.E.2d 728 (1987); O'Loughlin v. O'Loughlin, 20 Va. App. 522, 458 S.E.2d 323 (1995)
VT Relevant Charles v. Charles, 788 F.2d 960 (3d Cir. 1986); Feddersen v. Feddersen, 68 F. Supp. 2d 585 (D.V.I. 1999)
WA Not Relevant In re Marriage of Clark, 13 Wash. App. 805, 538 P.2d 145 (1975)
WV Not Relevant Hastings v. Hastings, 201 W. Va. 354, 497 S.E.2d 203 (1997)
WI Not Relevant Anstutz v. Anstutz, 112 Wis. 2d 10, 331 N.W.2d 844 (Ct. App. 1983)
WY Relevant Hall v. Hall, 40 P.3d 1228 (Wyo. 2002)


Notes

1. Utah. Utah courts clearly cannot consider fault "to impose punishment on either party." Jesperson v. Jesperson, 610 P.2d 326, 328 (Utah 1980). This limitation is followed universally, even in states which consider fault regularly. Jesperson relied upon Read v. Read, 594 P.2d 871, 872 (Utah 1979), which in turn quoted the following passage from Wilson v. Wilson, 5 Utah 2d 79, 82, 296 P.2d 977, 979 (1956):

In regard to the defendant's contention that the judgment represents an effort of the court to impose a punishment upon him: We recognize that there is no authority in our law for administering punitive measures in a divorce judgment, and that to do so would be improper, except that the court may, and as a practical matter invariably does, consider the relative loyalty or disloyalty of the parties to their marriage vows, and their relative guilt or innocence in causing the breakup of the marriage.

The author reads this passage to permit consideration of fault as long as fault is considered only to compensate the innocent spouse for any additional burden imposed by the fault. The author cannot find any subsequent Utah case which has ever overturned the language. But there are no recent Utah cases considering fault, and the Utah Supreme Court has provided a list of relevant factors (the Utah legislature has not provided a statutory list) which does not mention fault. Burke v. Burke, 733 P.2d 133, 135 (Utah 1987). The recent practice, therefore, seems to be that fault is not considered. On the face of the law, however, a reasonable argument exists that Wilson is still valid, particularly when the fault is significant (e.g., spousal abuse).

2. Other Surveys. This survey generally reaches the same result as the similar survey in Ira M. Ellman, The Place of Fault in Modern Divorce Law, 28 Ariz. State L.J. 773 (1996). The only clear difference is Virginia, which initially refused to consider fault. Aster v. Gross, 7 Va. App. 1, 371 S.E.2d 833 (1988). Aster was questionable, for Va. Code Ann. 20-107.3(E)(5) (Westlaw 2003) permits the court to consider any conduct which contributes to the breakdown of the marriage. In O'Loughlin v. O'Loughlin, 20 Va. App. 522, 458 S.E.2d 323 (1995), the court for all practical purposes rejected Aster, holding that the court may consider the harm inflicted by misconduct, even if that harm is entirely noneconomic. Given law review article deadlines, O'Loughlin was probably decided after Ellman's article was written. Recent cases continue to follow O'Loughlin and not Aster. E.g., Watts v. Watts, 40 Va. App. 685, 581 S.E.2d 224 (2003). I am also less certain than Ellman that Utah courts are barred from considering fault.

Apart from Utah and Virginia, the final numbers used here differ somewhat from Ellman's numbers, because this survey includes the District of Columbia and the Virgin Islands, which were not included in Ellman's survey.

In Peter N. Swisher, Reassessing Fault Factors in No-Fault Divorce, 31 Fam. L.Q. 269 (1997), the author notes the change in Virginia law which occurred after Ellman wrote. He also suggests that Wisconsin might be a threshold state, relying on In re Marriage of Brabec, 181 Wis. 2d 270, 510 N.W.2d 762 (Ct. App. 1993), which considered conspiracy to murder. But Brabec considered the conspiracy only when setting alimony; it recognized that Wis. Stat. Ann. 767.255 (Westlaw 2003) expressly bars consideration of fault in property division. This article therefore agrees with Ellman that fault is not relevant to the division of property in Wisconsin.

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