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MARITAL MISCONDUCT AND DIVORCE

Living in a no-fault state does not mean misconduct within the marriage will go unnoticed at the time of your divorce. Marital misconduct can affect the division of property, the award of spousal support, and even an award of attorney's fees to the victim-spouse. Understanding your legal rights is important in regards to your spouse's marital behavior.

Marital misconduct consists of actions that undermine or erode the marital relationship; such things as misappropriation of the marital estate or infidelity can be looked at by the judge in a determination of property distribution or an award of spousal support. In some states, adultery, which is extramarital sex between a married person and a third party, is grounds for divorce in a fault-based situation. Adultery may also be a factor in property distribution and/or a maintenance award in some jurisdictions.

Marital misconduct becomes a factor in a divorce when the offender-spouse's behavior inordinately burdens the other spouse. In this, the victim-spouse contributes more to the marriage because of the offender-spouse's misconduct; therefore, he or she is entitled to have the offensive behavior considered when the marital estate is divided. Courts disregard misconduct if both spouses are guilty of misconduct. In some states, marital misconduct is specifically disregarded as a matter of law.

Economic and Marital Misconduct

In those states where misconduct is a factor, several broad categories of misconduct include habitual drunkenness or addiction, adultery, domestic violence, cruel and abusive behavior, or economic fault.

The court determines what weight to give marital misconduct in each specific situation. The court considers the length of the marriage, the character of the misconduct, and the time period during the marriage when the misconduct occurred, the frequency of the conduct and whether the misconduct was continual.

Courts view the types of marital misconduct in different ways. Often, domestic violence might not be a relevant factor for the court in making a decision on equitable division of property. This particular misconduct, while reprehensible, may not affect the acquisition of marital property. Economic fault, such as dissipation of assets, adultery or an addiction, however, directly affect the marital estate.

Economic misconduct includes 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. Marital misconduct includes illicit sexual relations during the marriage; criminal acts that lead to separation, neglect or abandonment, domestic abuse/violence, financial mismanagement, and addiction.

While You Are Separated and Before You Divorce

Just separating does not mean that marital misconduct is no longer relevant. During the pendency of divorce, couples need to make sure they steer clear of marital misconduct. Courts will still look at the conduct of the couple during the negotiations of the divorce settlement up until the final decree or judgment of divorce is signed.

Pennsylvania courts do not consider marital misconduct, such as adultery, when dividing property in a divorce, unless the misconduct reduces the parties' marital estate. Taking all the money out of the joint bank account to spend the money on an extramarital affair, the court may consider the money an advance on equitable distribution to him or her and reduce the percentage he or she receives in equitable distribution to compensate the victim-spouse for the unauthorized dissipation of their marital estate.

Compensatory distribution seeks to remedy the economic misconduct of one spouse, rather than punishing that spouse for his or her indiscretions. In addition, marital misconduct may come into play in a divorce in the award of alimony. The court looks at the marital misconduct of both parties during the marriage to determine whether alimony is necessary, including the nature, amount, duration and manner of payment.

In cases that involve economic misconduct -- dissipation, hiding or destruction of assets, the excessive or abnormal spending of income, or the fraudulent conveyance of assets -- the court cannot increase the size of the marital or community estate, but it can order a disparate division of the existing and known assets to reimburse the victim-spouse for his or her loss in the couple's estate. The disparate division is not to punish the offender-spouse or award him or her an inadequate amount of property or income, but to fairly compensate the victim-spouse.

In the awarding of spousal support, marital misconduct works both ways. A spouse entitled to receive support but who is guilty of the misconduct, may find his or her support in jeopardy depending upon the type and level of the misconduct. A paying spouse might have to pay more, if his or her behavior caused the victim-spouse to give up or reduce the ability to earn income.

Just because both parties committed adultery does not mean they are barred from receiving alimony. Facts of the divorce determine how the court applies the law. In Pennsylvania for example, the marital misconduct of either of spouse from the date of final separation is not considered in the court's deciding alimony, unless the misconduct is abuse.

Marital misconduct is one of seventeen factors the court considers in awarding alimony. Other factors the court includes the earnings and earning capacities of the parties, the duration of the marriage, sources of income for both parties, and the relative needs of the parties. So while marital misconduct, such as adultery, can be considered when making an alimony determination, it is certainly not the end-all-be-all as far as an alimony award goes.

Marital Misconduct by State

There are 28 states that take into consideration marital misconduct when awarding spousal support or alimony: 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.

There are 40 states that take marital misconduct into consideration when determining equitable distribution or marital property: 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.

As seen on Forbes, USA Today, CNN and NPR
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