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The Faulty Misconceptions of No-Fault Divorce - Doesn’t fault always matter?

Connecticut is known as a no-fault divorce state. In fact, almost all of the states in this country now have provisions for no-fault divorce. While controversy will continue to exist as to whether no-fault divorce provisions have led to the downfall of marriage in the United States, the question is ... doesn't fault always matter?

Take the small business owner in Fairfield County. If his wife catches him perusing sexually explicit internet chat sites, sleeping with the live-in nanny or masquerading at a New York City nightclub in drag ... will his business survive if that information is made public? What about the white collar executive who visits prostitutes during business trips or the female assistant who gets caught canoodling with her boss at the company holiday party ... are these revelations really not important in a no-fault divorce proceeding?

For some individuals, such as former New Jersey governor, Jim McGreevey and his highly publicized divorce from Dina Matos McGreevey, airing out each other's dirty laundry in public is nothing to be concerned about, but for the average Connecticut resident, allegations of fault may be damning to one's business, one's reputation and/or one's financial status.

The grounds for dissolution in Connecticut are set forth at Conn. Gen. Stat. Section 46b-40(c) and include the following:

  • the marriage has broken down irretrievably;
  • the parties have lived apart by reason of incompatibility for a continuous period of at least the eighteen months immediately prior to the service of the complaint and that there is no reasonable prospect that they will be reconciled;
  • adultery;
  • fraudulent contract;
  • willful desertion for one year with total neglect of duty;
  • seven years' absence, during all of which period the absent party has not been heard from;
  • habitual intemperance;
  • intolerable cruelty;
  • sentence to imprisonment for life or the commission of any infamous crime involving a violation of conjugal duty and punishable by imprisonment for a period in excess of one year;
  • legal confinement in a hospital or hospitals or other similar institution or institutions, because of mental illness, for at least an accumulated period totaling five years within the period of six years next preceding the date of the complaint.

While the statutory grounds for dissolution may include those relating to fault, "irretrievable breakdown," is the basis normally alleged. As a result, it is not required that one spouse prove fault against the other in order to obtain dissolution of their marriage.

Where fault may play a part, however, is in the Court's rendering of a financial award under Conn. Gen. Stat. Section 46b-81, et. seq. and/or in matters of child custody under Conn. Gen. Stat. Section 46b-56, et. seq. A larger alimony award is surely an area where a Court can weigh fault to favor one party over another.

Conn. Gen. Stat. Section 46b-81(c) states that:

[i]n fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.

In addition, when children are involved, a dissolution decree must also dispose of the issue of child custody. In making a determination regarding child custody, Connecticut follows the "best interests of the child" standard. Pursuant to Conn. Gen. Stat. Section 46b-56(c), the cause for the dissolution may be considered if the actions of the parent at fault would anyway affect the best interests of the child. Conn. Gen. Stat. Section 46b-56(c) specifically maintains that:

[i]n making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors: (1) The temperament and developmental needs of the child; (2) the capacity and the disposition of the parents to understand and meet the needs of the child; (3) any relevant and material information obtained from the child, including the informed preferences of the child; (4) the wishes of the child's parents as to custody; (5) the past and current interaction and relationship of the child with each parent, the child's siblings and any other person who may significantly affect the best interests of the child; (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders; (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute; (8) the ability of each parent to be actively involved in the life of the child; (9) the child's adjustment to his or her home, school and community environments; (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child's family home pendente lite in order to alleviate stress in the household; (11) the stability of the child's existing or proposed residences, or both; (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child; (13) the child's cultural background; (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child; (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in Section 46b-120; and (16) whether the party satisfactorily completed participation in a parenting education program established pursuant to Section 46b-69b. The court is not required to assign any weight to any of the factors that it considers.

Tipping the scales with respect to the division of assets in favor of the spouse not at fault and/or custody of one's children aside, isn't it really the public nature of the dissolution proceeding that makes fault an issue? While fault may not affect the couple married for ten years who find that their relationship has run its course and want to go their separate ways, the white collar executive who visits prostitutes or the business owner who views child pornography have a lot at risk.

An astute attorney prosecuting a case where the fault is egregious uses fault to his or her benefit in many ways. Often just the suggestion of a public trial leads to swifter settlements. At other times, the spouse at fault may not realize until after the trial has commenced that a written decision relating to the dissolution proceedings will be public record and circulated on the internet or that the documents, testimony and evidence submitted at trial will be available for public inspection. This revelation is paramount in obtaining an advantage at trial when the spouse at fault can not risk public dissemination of the actions that broke down the marriage.

Well-known figures, such as former governor McGreevey, must deal with media exposure every day, but the public nature of a dissolution proceeding must be taken into consideration by all parties when deciding to proceed to trial. If one spouse is clearly responsible for the breakdown of the marriage, fault will undoubtedly be emphasized during the proceedings. While some judges may not be impressed if one spouse is just attempting to humiliate the other, if the fault is particularly unforgiving, it will certainly have a bearing on the award of alimony and/or custody.

More often than not, however, fault is the key factor used by matrimonial attorneys to induce a settlement that is beneficial to their client. It is estimated that, in Connecticut, approximately 90% of all dissolution cases are settled prior to trial. This is done by drafting what is known as a "Separation Agreement". A separation agreement is executed and acknowledged by the parties and provides for financial and custody arrangements. The case is then claimed for the "uncontested" list and a hearing is scheduled. If the agreement is fair and equitable and jurisdiction is obtained, the dissolution will be approved by the Court.

Settlement is the means preferred in cases where the fault is egregious because the grounds for dissolution are not articulated in a separation agreement. The spouse at fault, therefore, gets a reprieve from public broadcast of his or her indiscretions.

In this regard, while the pundits will continue to debate the negative effects of no-fault divorce on marriage in the United States, the stark reality is ... whatever the grounds for divorce, fault always matters.

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If the court refuses to award alimony at the final hearing, and if alimony is not included in the final judgment, neither spouse can return to court in the future and request alimony due to a change in circumstance. Many final divorce judgments in Connecticut award $1 a year in alimony because this preserves the right to revisit the alimony issue if circumstances change.
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