Divorce and marital misconduct

Editor’s note: The following article, written by Laura Johnson, is reproduced from It offers tips that may help people who are divorcing a sociopath.

Even though your state may be a no-fault divorce state, it doesn’t mean that you or your spouse won’t have to answer in some way for any misbehavior during the marriage. It’s what divorce lawyers and courts refer to as marital misconduct and, in certain states, can affect the outcome of the division of property, an award of spousal support, or an award of attorney’s fees for the victim-spouse.

The legal definition of marital misconduct is any conduct that undermines the marital relationship. It becomes a factor in a divorce when the offender-spouse’s behavior forces the victim-spouse to assume extra burdens in the marriage. It isn’t meant to punish the offender-spouse or award him or her an inadequate amount of property or income, but to fairly compensate the victim-spouse.

The rationale behind this theory is that the victim-spouse is compelled to contribute more to the marriage because of the offender-spouse’s misconduct, therefore he or she is entitled to have the offender-spouse’s behavior taken into consideration when property or income are divided. Marital misconduct can be disregarded if both spouses are guilty of marital misconduct. In some states, marital misconduct is specifically disregarded as a matter of law.

In those states where misconduct is a factor, there are several broad categories of behavior that might be classified as marital misconduct. They are:

  • habitual drunkenness or addiction,
  • adultery,
  • domestic violence,
  • cruel and abusive behavior, or
  • economic fault.

Once the offender-spouse’s behavior has reached the level of marital misconduct, it is the court’s responsibility to determine just how much weight to give to it in each specific situation. Some of the considerations the court looks at when deciding this issue are:

  • the length of the marriage,
  • the character of the misconduct,
  • the time period during the marriage when the misconduct occurred, and
  • the frequency of the conduct and whether it was continual.

Certain types of marital misconduct may have more of an impact upon a court’s decision-making than others. For example, cruelty or domestic violence might not be a relevant or appropriate consideration for making an equitable division of property because this type of misbehavior typically isn’t relevant to the acquisition of marital property. The same cannot be said for economic fault, adultery or an addiction, all of which can directly influence a couple’s property.

There are several types of economic fault. They are:

  • dissipation of assets,
  • hiding assets,
  • diverting marital or community income to pay for an addiction,
  • spending marital or community income on an extramarital relationship,
  • excessive or abnormal spending,
  • destruction of property,
  • the fraudulent sale or conveyance of property, and
  • any other unfair conduct that prevents the court from making an equitable division of property.

Some divorcing spouses believe that once they are separated and a divorce filed that marital misconduct, especially adultery or economic fault, has no effect on the outcome in a divorce. That isn’t actually the case. Each divorce is very fact specific and the same logic about the impact of marital misconduct on the division of property applies whether it occurred prior to the separation or during the pendency of a divorce. This is particularly true for economic misconduct.

There are some states that have statutes that specifically permit a court to award a disproportionate or lesser share of property to an offender-spouse, particularly if the misconduct can be classified as economic. The facts of each particular divorce play a heavy role in how the court applies the law.

In cases that involve the dissipation, hiding or destruction of assets, the excessive or abnormal spending of income, or the fraudulent conveyance of assets the court can’t increase the size of the marital or community estate that actually exists. However, it can order a disparate division of the existing and known property to reimburse the victim-spouse for his or her loss in the couple’s estate.

In addition to having a possible effect on the division of property, marital misconduct may also have an effect on the amount of spousal support an ex-spouse may receive provided he or she qualifies for such support. This can work both ways. If the spouse who may be entitled to receive support is guilty of the misconduct, his or her receipt of support may be in jeopardy depending upon the nature and level of the misconduct. On the other hand, a paying spouse might have to pay more, especially if his or her behavior caused the victim-spouse to give up or reduce the ability to earn income.

The following states take marital fault into consideration when determining an award of spousal support: Alabama, Arizona, Connecticut, District of Columbia, Florida, Georgia, Idaho, Louisiana, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Nevada, New Hampshire, New Jersey, New York, North Dakota, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming. (Source: American Bar Association, Family Law Quarterly, Winter 1998, Tables Summarizing the Law in Fifty States)

The following states take marital misconduct, especially economic fault, into consideration when dividing marital or community property or in reimbursing the marital or community estate: Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Indiana, Kansas, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia and Wisconsin. (Source: American Bar Association, Family Law Quarterly, Winter 1998, Tables Summarizing the Law in Fifty States).

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143 Comments on "Divorce and marital misconduct"

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Having Learned so much here at LF, It is true, When it comes to dealing with the courts, They do not care how we feel! I recently contacted our local Legal aid office, I was told by the intake specialist, That the only misconduct they recognize, is the PHYICAL DV. And I was told that this type of violence, MUST BE DOCUMENTED. Apparently our state and other states, Do not recognize other forms of abuse. Just omg! The laws are just as insane as the perps!

“No Fault” divorce was instituted as a means for housewives to recover and move on from philandering husbands who ran off with the secretary or some other woman. Prior to “No Fault,” men typically earned the income while women remained in the home to keep the house and raise the children. When the man made a choice to leave the wife and children, he took his income with him, and the ex-wife was left with nothing. SO, “No Fault” came into existence.

While “No Fault” had a noble and “fair” beginning, it quickly relieved ALL parties from any responsibility for violating a legal contract of marriage. Whether you’ve been married in a Cathedral or in a chicken-house by a Justice Of The Peace, it is NOT a blending of souls or a “blessed arrangement.” Marriage, in the eyes of the Law, is simply a contract. Because this is true, either (or, both) party can engage in whatever depraved, despicable, betrayals they wish WITHOUT facing a single consequence other than “equitable distribution.” The idiot who has harmed a loving spouse of 15 years is NOT, under any circumstances, held responsible for the damages that he/she has chosen to inflict. Period

As for STD as the result of spouse’s extramarital activities, in the State where I was divorced, this action is a completely SEPARATE legal matter from the divorce action. It may apply in other States, as well – there are several States that support harsh financial consequences on a spouse or partner that passes on a STD to their spouse or partner, and this provision has NOTHING to do with the divorce action, though an astute divorce attorney will be familiar with their State’s provisions and file the proper motions.

It is absolutely imperative that we gather, on our own, as much documentation as we can. Financial & medical documentation is so very, very important to our cases. The documentation is what will determine distribution. From mortgages to educational loans, all financial information, credit accounts, bank accounts, investments, retirement, IRA accounts, certificates of deposit, and anything tangible will be divided.

Courts cannot afford to take the “feelings” of litigants into account – if a court had to consider my feelings in relation to my divorce action, the trial would STILL be ongoing. The Law – divorce, custody, parking tickets, civil actions – does NOT deal in “feelings,” and this painful truth/fact is precisely why seeking individual counseling therapy is so important when divorcing a sociopath.

Once I accepted that the Law is based upon facts, it relieved me of a tremendous burden that I would have had to “explain” or “defend” myself.

Having typed that, divorce attorneys make an absolute shit-ton of money on “No Fault” divorce cases. 90% of ALL divorces are settled out of the Courtroom without testimony or evidence being presented. Attorney’s fees are generated by filing motions, answering telephone calls, READING and sending emails, and speaking to the defendant’s attorney about negotiations. If “No Fault” divorce were amended or (better yet) repealed in every State, divorce attorneys would actually be forced to EARN their $300 per hour. So, it boils down to negotiating instead of actual courtroom work.

In my case, the idiot exspath refused to negotiate, so a trial was set – this was one of only a few actual trials that my attorney had worked in her many years of legal practice. Think about that for a minute: my matter was her ONLY trial in 12 months out of probably 217 divorce actions in 2012. When we are talking about fees, the average divorce (without children, custody/visitation issues) runs about $8000 – 12,000. Take the average of 10K and multiply that times 217. That’s an annual income of $217,000 (or, substantially more) for NEGOTIATING. That does not include the tens of thousands (up to, and beyond 30K) incurred in custody/visitation issues. This also doesn’t include the Civil suits that are filed – don’t allow yourself to believe that you are your attorney’s only client – they are VERY busy beavers and generating incomes that are beyond our capacity to comprehend. This is why attorneys and the legal communities will NEVER support or allow “No Fault” to be amended or repealed. My attorney’s answer of stunned silence was simply a confirmation that divorce – good, bad, amicable – is an industry, PERIOD.

EDIT ADD: As an example of what a moneymaker “No Fault” is, please, consider that I was charged $60 per email to be READ, and another $60 to generate a reply. Think about this before you hit your attorney with a barrage of emails or phone calls. 😉


I believe that you hit the nail on the head. I was told my 3,500 would only take me to step two of the divorce process.

OMG, I don’t even have a job to pay for the next installment of the attorney’s fees. But unfortunately as BLUE said, it is gonna be a fight. He of course won’t want to go to court and have his infidelity and illegal activities come to light so that may be a little something that will encourage him to settle fairly- fair in the eyes of the law of course.

Thanks truthspeak for this wealth of information- it’s a lot to process. I have been out of the house for some time although I did have the common sense to take the files with me on my way out 🙂

Today would have been 31 years married for me- even though he tried to kill me- the sick needy part of me misses him 🙁

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