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© 1994 National Legal Research Group, Inc.

Most states have taken the position, either through legislation or case law, that misconduct such as adultery should not be considered in deciding upon an equitable distribution of assets acquired during marriage. In these jurisdictions, however, some courts have nevertheless permitted consideration of marital fault that has adverse economic consequences.

A minority of states have a statute that expressly authorizes consideration of marital fault, and an even smaller number of other states have interpreted the lack of a statutory prohibition to mean that marital fault is a permissible factor. But even in these jurisdictions, appeals courts have placed limits on the use of the fault factor and the weight accorded to it, so that misconduct becomes a permissible or important factor only if it had an adverse economic impact. Thus, differing views on marital fault seem to be slowly converging into a widely accepted notion that marital fault should be taken into account if and only if it has negative financial consequences.

Part I of this article discusses fault that has economic consequences as a factor bearing on property distribution in jurisdictions that prohibit consideration of marital fault. Part II of this article highlights evolving limits on the fault factor in jurisdictions which permit consideration of fault. Part III reviews the courts' views on particular types of misconduct .

I. States That Prohibit Consideration of Fault

A majority of states have taken the position, either through legislation or case law, that marital fault other than economic misconduct should not be considered in deciding upon an equitable distribution of assets acquired during marriage. Consideration of marital misconduct is precluded by statute in jurisdictions that patterned their equitable distribution legislation upon the original draft of the Uniform Marriage and Divorce Act, which specifies that property division must be made "without regard to marital misconduct." In other states, courts have decided that consideration of marital fault would be incompatible with the concept of marriage as an economic partnership. E.g., Chalmers v. Chalmers , 65 N.J. 186, 320 A.2d 478 (1974); O'Brien v. O'Brien , 66 N.Y.2d 576, 489 N.E.2d 712, 498 N.Y.S.2d 743 (1985); see also Charlton v. Charlton , 186 W. Va. 670, 413 S.E.2d 911 (1991) (consideration of marital misconduct is not only prohibited by state statute but is also at odds with the concept and purpose of equitable distribution).

Fault That Has Economic Consequences. In some cases in these jurisdictions, however, courts have determined that misconduct may be considered as a factor in property distribution to the extent it dissipates assets or otherwise affects the parties' economic circumstances.

For instance, in In re Marriage of Sommers , 246 Kan. 652, 792 P.2d 1005 (1990), the Kansas Supreme Court said its ruling barring consideration of marital misconduct would not preclude consideration of evidence about marital fault which affected the parties' economic circumstances, future income, and needs. For example, it noted, if a physician's future income were likely to decrease because of continuing alcohol or drug abuse, it might be provident to award that individual's dependent spouse a greater share of property rather than alimony. Similarly, if one spouse's abusive behavior impaired the other spouse's earning capacity, the trial court could consider the abuse and its effect when distributing the parties' property. In such circumstances, the court said, the evidence of marital fault could be considered for the purpose of making a "realistic evaluation" of the parties' circumstances and not for the purpose of imposing a penalty. See also Burt v. Burt , 386 N.W.2d 797 (Minn. Ct. App. 1986) (maintenance statute's prohibition against consideration of fault did not foreclose trial court from considering financial need resulting from health problems caused by husband's misconduct); cf. Shoffner v. Shoffner , 91 N.C. App. 399, 371 S.E.2d 749 (1988) (spouse's failure to assist in compilation and valuation of marital property may be considered as a financial factor justifying unequal distribution if it causes the other spouse to incur additional expenses).

In Mellon Bank, N.A. v. Holub , 400 Pa. Super. 360, 583 A.2d 1157 (1990), a Pennsylvania appeals court held that the husband's efforts to have the wife killed could be considered by the trial court in the context of his dissipation of marital assets. The court upheld the award of the entire marital estate to the wife. Along the same lines, in LaBuda v. LaBuda , 349 Pa. Super. 524, 503 A.2d 971 (1987), a Pennsylvania appeals court held that consideration of the husband's extramarital affair was not improper because it was limited solely to the issue of dissipation of the marital estate. A ban against considering marital misconduct does not preclude trial courts from considering economic misconduct. In re Marriage of Steadman , 63 Wash. App. 523, 821 P.2d 59 (1991) (statutory prohibition against consideration of "marital misconduct" does not extend to gross fiscal improvidence, squandering of marital assets, or the deliberate and unnecessary incurring of tax liabilities).

II. Judicial Limits on Consideration of Fault

A minority of jurisdictions still adhere to the view that fault is an appropriate factor to consider in dividing property upon marriage dissolution. See, e.g., Sparks v. Sparks , 440 Mich. 141, 485 N.W.2d 893 (1992) (approving a long line of intermediate appeals court decisions holding that marital fault is an appropriate consideration when distributing property upon divorce); Behm v. Behm , 427 N.W.2d 332 (N.D. 1988) (husband's adultery and physical abuse of wife were proper considerations in property division); Igo v. Igo , 759 P.2d 1253 (Wyo. 1988) (marital fault may be considered together with all other facts and circumstances surrounding the dissolution for purposes of determining property division).

But even in jurisdictions with statutes which ostensibly permit consideration of fault, courts sometimes apply one of several judicially fashioned doctrines or theories which limit the impact of the misconduct or even make it irrelevant. And in some states with no specific statutory provision on fault, courts have approved fault as a factor in only limited circumstances. Judicially developed limits on consideration of fault are discussed next.

Misconduct Must Have Economic Consequences. A Virginia appeals court decided that marital fault must result in economic consequences in order to become a relevant factor in equitable distribution. The court stressed the economic partnership theory underlying the equitable distribution statute and declared that fault should not be used to punish economically either marriage partner. Aster v. Gross , 7 Va. App. 1, 371 S.E.2d 833 (1988). Later cases have reaffirmed this view. See Decker v. Decker , ___ Va. App. ___, 435 S.E.2d 497 (1993); Marion v. Marion , 11 Va. App. 659, 401 S.E.2d 432 (1991).

Along the same lines, South Carolina appeals courts have held that consideration of fault should be limited to its impact on the economic circumstances of the parties during marriage. E.g., Smith v. Smith , 294 S.C. 194, 363 S.E.2d 404 (Ct. App. 1987).

In Florida, where the equitable distribution statute is silent on the issue of marital fault, the state's high court has indicated its general dissatisfaction with the consideration of fault where economic justice does not require the fault to be taken into account. Noah v. Noah , 491 So. 2d 1194 (Fla. 1986). In subsequent cases, the state's intermediate appeals courts have likewise limited consideration of fault. E.g., Green v. Green, 484 So. 2d 1269 (Fla. DCA 1986).

Misconduct Must Have Burdened Other Spouse. Some appeals courts in Missouri, which expressly permits consideration of misconduct, have indicated that the fault factor comes into play only if the misconduct placed an undue burden on the other spouse or the marital partnership. In the most frequently cited case, Burtscher v. Burtscher , 563 S.W.2d 526 (Mo. Ct. App. 1978), the court said there should not be an inordinate focus upon a particular incident or even a series of incidents, particularly in a marriage of long duration. The conduct factor becomes important only when one spouse's misconduct changes the balance so that the other must assume a greater share of the partnership load. See, e.g., In re Marriage of Gustin , 861 S.W.2d 639 (Mo. Ct. App. 1993) (wife's act of chopping through door of marital residence after parties' separation did not place any burdens on the marital relationship); Divine v. Divine , 752 S.W.2d 76 (Mo. Ct. App. 1988) (husband's conduct - failing to communicate with wife, physically abusing her, harassing her over the telephone, and making false accusations against her-unquestionably placed undue stress on the marriage).

South Carolina's intermediate appeals court adopted this burden test in Woodside v. Woodside , 290 S.C. 366, 350 S.E.2d 407, 412 (Ct. App. 1986), holding that "the conduct factor becomes important in equitable distribution when the conduct of one party to the marriage is such that it throws upon the other party marital burdens beyond the norms to be expected in the marital relationship." Since the husband's misconduct - adultery - neither caused the dissolution of the marriage nor imposed additional burdens on the wife, fault was not a pertinent consideration in dividing the parties' property, the court held.

Misconduct Must Precede Marriage Breakdown. Some courts take the view that misconduct after marriage breakdown should not be considered as a factor because it did not play a role in the demise of the marriage. E.g., Knowles v. Knowles , 185 Mich. App. 497, 462 N.W.2d 777 (1990) (adultery which occurred after filing of divorce petition did not contribute to the marital breakdown and was therefore irrelevant); Zecchin v. Zecchin , 149 Mich. App. 723, 386 N.W.2d 652 (1986) (the only fault that may be considered when dividing property is that which leads to marriage breakdown, not misconduct occurring after the union had already collapsed).

Fault Must Cause the Marriage Breakdown. New Hampshire's high court held that fault may be considered in dividing property only if the fault is proven to have been the primary cause of the disintegration of the marriage. Chabot v. Chabot , 126 N.H. 793, 497 A.2d 851 (1985).

Fault Not Entitled to Great Weight. Some courts have cautioned against according too much weight to fault as a factor in the award. E.g., Sparks v. Sparks, supra (marital fault should not be considered dispositive or assigned disproportionate weight); Barth v. Barth , 800 S.W.2d 127 (Mo. Ct. App. 1990) (inordinate focus on fault is an inappropriate basis for a wholly disproportionate award; what is wholly disproportionate depends largely on the facts of each case); Rampey v. Rampey , 286 S.C. 153, 332 S.W.2d 213 (Ct. App. 1985) (marital fault can be given some weight in dividing property but does not justify a severe penalty).

Not all courts have joined the move to limit the scope and impact of the fault factor, however. For example, a Maryland appeals court indicated that a trial court's failure to give sufficient weight to this factor would be grounds for reversal of the award. Court v. Court , 67 Md. App. 676, 509 A.2d 693 (1986). And in several recent cases, a spouse's misconduct was cited as a factor justifying the award of most or all property to the other spouse. E.g., Mangina v. Mangina , 585 So. 2d 1383 (Ala. Civ. App. 1991) (husband's adulterous lifestyle was one factor among several that justified award of nearly all property to wife); Mellon Bank, N.A. v. Holub, supra (husband's efforts to have wife killed could be considered by trial court in the context of his dissipation of marital assets; court upheld award of entire marital estate to the wife); Leonard v. Leonard , 150 Vt. 202, 552 A.2d 394 (1988) (wife awarded virtually all property because of husband's admitted criminal conduct toward the wife's minor child by a prior marriage).

Attorney's Fees. Attorney's fee awards for misconduct usually involve misbehavior directly linked to the litigation, but in jurisdictions that recognize marital fault as a factor in the award, it appears that a fee award may be based on mischief that has little or no effect on the lawyer's billable hours. For example, in Hemphill v. Hemphill , 710 S.W.2d 438 (Mo. Ct. App. 1986), as the court upheld a $2,500 award to the wife, it noted that not only was the husband earning more money than the wife but also that there was evidence of marital misconduct by the husband. See also In re Marriage of Craven , 689 S.W.2d 807 (Mo. Ct. App. 1985) (upholding award of fees to wife in view of the fact that it was the husband "who wanted out of the marriage" so that he could marry the woman with whom he had been having an adulterous liaison).

III. Specific Types of Conduct

In jurisdictions that permit consideration of marital fault, a threshold question is what types of behavior or conduct count as misconduct. See Sandin v. Sandin , 688 S.W.2d 50 (Mo. Ct. App. 1985) (court questioned whether husband's behavior - occasionally drinking beer, playing cards, and being away from home without explanation - could be considered misconduct, but decided in any event that the conduct had not burdened wife so as to entitle her to additional property). In states that permit consideration of fault, the fault factor can embrace a wide spectrum of behavior and is generally not limited to misconduct that would justify a divorce on traditional fault grounds. See, e.g., Court v. Court, supra (trial court properly considered that the husband resigned from his job to go on a 10-month sailing trip, required his family to move from the marital residence, and engaged in extramarital affairs).

Alcoholism. Courts disagree whether excessive drinking and alcoholism amount to misconduct that should be weighed against the alcoholic spouse. Compare Peirson v. Calhoun , ___ S.C. ___, 417 S.E.2d 604 (Ct. App. 1992) (husband's drinking constituted marital fault) with Barry v. Barry , 511 So. 2d 649 (Fla. DCA 1987) (wife's alcoholism was an illness and thus did not justify disproportionate distribution to husband even though the illness required additional servšices by husband beyond normal marital duties).

A spouse's excessive drinking often has a negative impact on the family's economic circumstances, and this adverse impact may be considered as a factor in the property distribution. Peirson v. Calhoun, supra (trial court should have considered impact of husband's drinking on parties' economic circumstances). Even in a jurisdiction that does not permit consideration of marital misconduct, the trial court may consider a spouse's drinking to the extent it diminished the spouse's contribution to the acquisition of assets. In re Marriage of Clark , 13 Wash. App. 805, 538 P.2d 145 (1975) (trial court properly considered husband's drinking habit for the purpose of determining whose labor or counterproductive conduct was responsible for creating or dissipating certain marital assets).

The alcoholism-as-fault issue was discussed at length by the dissent in Patricia B. v. Steven B. , 186 A.D.2d 609, 588 N.Y.S.2d 874 (1992) (Miller, J., dissenting in part). The majority said briefly that problems such as alcoholism are "not to be ignored" when distributing marital property, but the dissent analyzed the alcoholism issue in much greater detail. The dissent asserted that the wife's alcohol-related problems did not fall within the ambit of fault, which is limited by New York case law to highly egregious conduct. Moreover, the dissent said, the wife's alcoholism could not be deemed dissipation of assets or economic fault.

Adultery. In jurisdictions which permit consideration of fault, adultery is considered a relevant factor to take into account. E.g., Daitchman v. Daitchman , 145 Vt. 145, 483 A.2d 270 (1984) (husband's adultery and deceptive conduct justified refusal to award him any share in company inherited by wife even though his management activities had contributed to growth of that company); see also Dews v. Dews , 632 A.2d 1160, 1164 n.5 (D.C. 1993) (statutory list of factors is not exclusive; whether one party has had an adulterous affair may also be relevant).

If, however, the adultery occurred during the parties' separation, courts generally do not consider it relevant, even in jurisdictions which authorize fault to be taken into account. See Knowles v. Knowles, supra (adultery which occurred after filing of divorce petition did not contribute to the marital breakdown and was therefore irrelevant); Divine v. Divine, supra (wife's sexual infidelity during separation did not place any extra burden on the partnership and thus was not a viable factor in dividing their property).

Moreover, even when authorized to consider marital fault, courts often refuse to give adultery much weight as a factor in equitable distribution. For example, in Barth v. Barth, supra , a Missouri appeals court declared that an inordinate focus on adultery is an inappropriate basis for a wholly disproportionate award. What is wholly disproportionate depends largely on the facts of each case, the court said, upholding a 55-45 split in the case before it. The court pointed out that in D'Aquila v. D'Aquila , 715 S.W.2d 318 (Mo. Ct. App. 1986), a 60-40 split was deemed disproportionate, but that in Schwarz v. Schwarz , 631 S.W.2d 694 (Mo. Ct. App. 1982), an 85-15 split was upheld. Adultery has been accorded substantial weight in Missouri cases involving repeated adultery, e.g., Cook v. Cook , 706 S.W.2d 606 (Mo. Ct. App. 1986) (where husband had been repeatedly unfaithful to the wife, appeals court upheld award to wife of 86% of the marital estate), or physical injury. Mastin v. Mastin , 709 S.W.2d 545 (Mo. Ct. App. 1986) (husband's misconduct burdened wife sufficiently to justify a property division heavily weighed in favor of wife, who contracted a venereal disease from him twice).

The Kansas Supreme Court drew a distinction between adultery and other types of misconduct, and said that it could not imagine "any circumstances" where marital infidelity would be a proper consideration in equitable distribution, since marital infidelity "does not relate to the present or future financial circumstances of the parties or the award of any particular property." In re Marriage of Sommers, supra , 792 P.2d at 1010.

A Pennsylvania appeals court held that adultery may be considered as a factor only to the extent it involved dissipation of marital assets. LaBuda v. LaBuda, supra (consideration of husband's extramarital affair was not improper because it was limited solely to issue of dissipation of the marital estate).

Similarly, Florida courts have limited consideration of adultery for the most part to cases where the conduct had an adverse impact on the parties' finances. See Noah v. Noah, supra (adultery may be used as a factor in determining property division award only in very limited circumstances, such as where it may have contributed to the depletion of the family's financial resources); Eckroade v. Eckroade , 570 So. 2d 1347 (Fla. DCA 1990) (marital infidelity is irrelevant to distribution unless it depletes marital assets).

"Acting Out" Towards Estranged Spouse. During marriage breakdown and separation, spouses frequently act in an irrational manner toward their estranged marriage partners. Except for serious criminal conduct such as aggravated assault and murder, courts generally do not view most such "acting out" as misconduct that should have a bearing on equitable distribution.

For example, in a recent Missouri divorce case, the wife chopped through the door of the marital residence during separation. The appeals court held that that conduct did not constitute "marital misconduct" which could affect the property distribution. In re Marriage of Gustin, supra .

In a New York case, an appeals court held that the wife's misconduct in the waning months of the parties' marriage - berating the husband in the presence of his co-workers and friends, striking and biting him, and wounding him in the course of breaking into his locked suitcase with a kitchen knife - was not outrageous or extreme enough to be considered as a factor. Stevens v. Stevens , 107 A.D.2d 987, 484 N.Y.S.2d 708 (1985).

Murder or Attempted Murder. A New York appeals court held that a husband's attempt to arrange his wife's murder was relevant as egregious and shocking misconduct under the equitable distribution statute's catch-all factor. 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) (wife's conspiracy to murder husband justified unequal division in his favor, even though marital fault is not among factors enumerated in statute); D'Arc v. D'Arc , 164 N.J. Super 226, 395 A.2d 1270 (Ch. Div. 1978), aff'd , 175 N.J. Super. 598, 421 A.2d 602 (App. Div. 1980) (husband's attempt to murder wife should not be ignored when distributing property upon divorce). Contra In re Marriage of Cihak , 92 Ill. App. 3d 1123, 416 N.E.2d 701 (1981) (fact that husband murdered wife could not be considered as a factor because of statute's directive that distribution be made without regard to marital misconduct).

How much will the criminal conduct affect the distribution? In Sharpe v. Sharpe , 307 S.C. 540, 416 S.E.2d 215 (Ct. App. 1992), a South Carolina appeals court approved a decree awarding 35% of the marital estate to a wife who had unsuccessfully conspired to kill her husband. In a separate opinion, a concurring judge said that the offending spouse in such a scenario is not barred from equitable distribution as a matter of public policy and that each case should be decided on its own merits. In Brancoveanu v. Brancoveanu, supra , the court awarded the husband who participated in an attempted murder-for-hire of his wife 40% of the proceeds from the sale of the marital residence, but refused to grant him any share of the wife's dental practice.

In Mosbarger v. Mosbarger , 547 So. 2d 188 (Fla. DCA 1989), a Florida appeals court held that a wife should not be penalized in equitable distribution proceedings for her attempt to kill her husband, beyond the consequential economic damage to the family unit caused by the criminal conduct. A Pennsylvania appeals court upheld a trial court's decision to award the entire marital estate to a wife who had survived her husband's efforts to have her killed; those efforts could be considered in the context of the husband's dissipation of marital assets, the court decided. Mellon Bank, N.A. v. Holub, supra .

Other Criminal Conduct. In jurisdictions which permit consideration of misconduct, the trial court may consider one spouse's criminal conduct as a factor justifying a disproportionate distribution to the other spouse. E.g., Leonard v. Leonard, supra (trial court awarded virtually all the marital property to the wife because of the husband's admitted criminal conduct toward the wife's minor child by a prior marriage). A disproportionate award to a spouse for the other spouse's criminal conduct does not constitute additional punishment in violation of the constitutional prohibition against double jeopardy. Id.

In jurisdictions which do not permit consideration of noneconomic fault, a spouse's criminal conduct should not be treated as a factor in the award unless it dissipated marital assets or otherwise adversely affected the parties' economic circumstances. Bell v. Bell , 587 So. 2d 642 (Fla. DCA 1991) (husband's acts of child molestation, arson, and fraud would not support a disparate distribution of property unless they depleted marital assets or subjected the wife to foreseeable civil liability for his actions).

A New York trial court decided that a husband's commission of grand larceny should not be considered as a factor in property distribution even though it resulted in the forfeiture of his police pension. There is no blanket rule, the court said, that dissipation occurs any time one spouse commits a crime which automatically, but indirectly, adversely affects a marital asset. The court listed 11 factors, drawn from case law, to consider when determining whether a spouse's criminal conduct should be considered dissipation. Andrea v. Andrea , 152 Misc. 2d 100, 575 N.Y.S.2d 241 (Sup. Ct. 1991).

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