- What's the difference between fault and no-fault divorce?
- How does a court decided what is "fair and equitable"?
- Does fault ever matter in property distributions?
What's the difference between fault and no-fault divorce?
Over the past 50 years, the laws governing divorce in American courts have
gone from fault-based to no-fault. Fault-based divorce laws required a
person wanting a divorce to sue his or her spouse and prove the spouse
committed specific bad behavior-adultery, physical abuse, cruelty, abandonment,
drug or alcohol dependence, etc. Often, courts would favor the aggrieved
party in property division, support awards, and child custody decisions.
A couple who wanted to divorce often had to collude to create a false reason,
such as fake infidelity, and perjure themselves in court to obtain a divorce.
Attorneys and courts believed that the fault-based system created dishonesty
in the legal process, unnecessary acrimony, and increased litigation expenses
if one party did not want to divorce.
Oklahoma passed the first no-fault divorce law in 1953, but no-fault divorce
gained national attention in 1969 when California enacted a no-fault divorce
law. No-fault divorce only require one spouse to allege and show that
there is a permanent breakdown in the marriage to obtain a divorce. The
last fault-based divorce state, New York, amended its divorce laws to
no-fault in 2010. All states are currently no-fault divorce states.
How does a court decide what is “fair and equitable”?
To a divorcing spouse, a “fair and equitable” division of assets
and award of support may not seem fair and equitable. A hardworking spouse
of a 20-year marriage who has no desire to divorce may not think it “fair
and equitable” to be ordered to give half of his or her pension,
real property, or 401(k) and pay
spousal support (alimony) to a less financially solvent spouse who wants to leave the relationship.
The breadwinning spouse might want to try to present evidence to the court
that the other spouse is at fault for the end of the relationship-perhaps
for infidelity-to try to get the court to award an unequal division of
the assets or not award spousal support. Generally, however, in no-fault
states evidence of fault related to the breakdown of the marriage is legally
irrelevant and should be excluded from consideration by the court.
Instead, a court's analysis of a fair and equitable award will focus
almost exclusively on the economic conditions of the parties at the time
of divorce to determine what division of resources is fair.
For example, a court might consider:
- The length of the marriage.
- A spouse's contribution as a homemaker or as a stay-at-home parent.
- The parties' educational or vocational training and relative earning
- Consideration of one spouse's absence from the job market on his or
- A spouse's contribution to the other's education or earning ability
(e.g. the stereotype of a nurse putting a new doctor through medical school
to be dumped shortly after graduation).
- The spouses' respective financial needs, especially considering parenting duties.
- The relative health of the parties and or disability of a party.
- Whether a spouse's efforts caused a premarital asset, normally not
subject to division, to appreciate (e.g. time spent fixing up a spouse's
premarital home or helping with landlord duties related to the home).
When a court determines that one spouse would be at a significant economic
disadvantage post-divorce, it can use its fair and equitable discretion
to fashion a fair result. Courts will try to leave the parties on as equal
economic footing as possible and to prevent significant negative long-term
Does fault ever matter in property distributions?
Though courts generally exclude evidence of a spouse’s fault in a
divorce trial, a court may consider bad acts during the marriage - if
they are relevant to the court reaching a fair and equitable economic result.
Scenarios where fault could be considered to reach an unequal property
- Consideration of a spouse's gambling problem if he or she lost significant
- Infidelity where a party diverted significant income or depleted family
resources on another person.
- A spouse’s crime, if conviction resulted in the government seizure
of jointly owned property.
- Failure to provide support to a spouse who cares for the parties' children
during separation while supporting a new partner and his or her family.
An angry spouse can think of many ways to spin a tale of how the other
spouse's bad behavior created family economic hardship. For a court
to hear and consider evidence regarding a spouse’s bad behavior
during the marriage, the economic consequences of the behavior must be
significant and relevant to the court's ability to craft a judgment
that reaches a fair result.
If you have questions about fair property division in your divorce, contact
McKinley Irvin to consult with a divorce attorney experienced in fair
and equitable division of property in Washington State and Oregon.