Fault Divorce Effect on Property Division and Spousal Support

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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Divorce laws in the U.S. are set on a state-by-state basis, and in certain states there are two types of divorce: a fault divorce and a no fault divorce. A no fault divorce occurs when the parties end their marriage without placing the blame on one spouse or the other by citing irreconcilable differences or something similar.

A fault divorce, on the other hand, occurs when one spouse did something to cause the marriage to end. A fault divorce requires proof of fault but, in certain cases, it can entitle the other spouse who was not at fault to a more favorable property or asset division. 

Fault Divorce and Support Obligations

Questions of fault may be relevant in making a determination on spousal support or alimony. Alimony is intended to make things fair when there is an income disparity and to ensure that the spouse with a lower earning potential can continue to enjoy a lifestyle similar to that enjoyed during the course of the marriage. While the most relevant factors in determining alimony are the length of the marriage and the earning power (current and potential) of each spouse, fault can come into play in certain states as well.  In some cases, fault is considered for alimony determinations only when the party seeking alimony or who would otherwise be entitled to alimony is at fault. For instance, a person who might be entitled to receive spousal support but who had an affair might have the award of alimony reduced because of their role in causing the divorce.

The impact of fault on a divorce, even in states where it is considered, will vary depending on the situation and the discretion of the court. It is not the only factor to be considered, but is one of several issues that can affect the divorce process.

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Is Fault a Factor in Your State?

According to information by The American Bar Association as of 2011, states where fault is taken into account in a divorce arrangement include Alabama, Connecticut, Florida, Georgia, Idaho, Louisiana, Maryland, Massachusetts, Michigan, Mississippi, Missouri, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia and West Virginia. In Kentucky, only the fault of the spouse seeking alimony is considered relevant. 

If you are facing a divorce, be sure to know the divorce law in your state.

Economic Fault and Property Division

When a marriage ends, states typically divide property in one of two ways: community property rules or equitable distribution. Community property rules mean that marital assets are split 50-50 among the parties, while equitable distribution means that marital property is split fairly (but not always equal) according to rules outlined by state law.  Judges often have broad discretion in equitable distribution states and can consider any of the relevant factors outlined by law, including the length of the marriage or the fault of one or more parties.

In the vast majority of situations when fault comes into play in property division, it is only economic fault or economic misconduct that is considered. Economic fault refers to actions on the part of one of the spouses that deplete the marital estate or that misuse marital assets. Some examples of economic fault include hiding assets, spending joint funds on an addiction or on an extramarital sex partner, destroying property, engaging in abnormal or excessive spending, fraudulently selling or transferring property, or other unfair conduct that is designed to deprive the other spouse of what should rightfully be considered part of the marital estate subject to equitable distribution.

When one party engages in this type of economic misconduct, an offender may be awarded a lesser share of marital property or the court may consider the value of the assets prior to his or her wrongful behavior in dividing up property among the couple. Almost every state takes this type of fault into account in some way in dividing up marital property, although there are a few exceptions including Alabama, Georgia, Idaho, Louisiana, Nebraska, New Jersey, New Mexico, Utah and Washington.  In Hawaii, there is no specific statute specifying that economic misconduct should impact property division and case law on the issue is mixed.

Proving Fault

In order for fault to play a role in a divorce, the wrongful acts of the at-fault party must be proven in court. It is the obligation of the party claiming fault to meet the burden of proving these wrongful acts. An experienced divorce and family law attorney in your state can provide assistance with defining the types of fault behaviors that can lead to an at-fault divorce and can provide assistance with proving that the misconduct occurred. 

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