Huffpost Divorce
The Blog

Featuring fresh takes and real-time analysis from HuffPost's signature lineup of contributors

Lynn Toler Headshot

The Inherent Unfairness of No Fault Divorce When You are Married to a Jerk

Posted: Updated:

You have heard the stories. You may have even lived it. A couple divorces and one side gets, not only injured, but insulted as well. No Fault Divorce is a child of the 70's. When people needed to prove fault to obtain a divorce it presented a number of problems. Some in intolerable circumstances couldn't get one because the peculiar sort of pain they were in did not fall into a statutory category. Or all involved became entangled in some legal fiction, picking a category the court would recognize and forcing the facts to fit.

In the 70's with the growing adoption of No Fault Divorce, many of those difficulties dissipated, and the divorce rate soared. Unhappy people uncoupled at an unprecedented rate. But all of that came at a cost. Blinded to fault, the system lost sight of some of the realities of marriage. Though most (but not all) states have statutes that allow the judge to consider "such other facts as justice required" in determining asset division and support determinations, no fault is at the core of the courts' determinations. That, I believe, has prompted some very bad results.

The stories are as varied as the number of jerks there are in the world. A husband works and supports the family. His wife runs around with the pool guy. When they separate he still has to give her half of everything and pay her alimony, essentially forced to support both the wife that cuckolded him and the bum with whom she did it.

Or a wife who is the sole breadwinner comes home to her unemployed husband who assuages his sense of failure by riding her like a horse. She is to cook, clean and cater to him (that lets him feel like he's still a man) while he contributes little if anything at all. But when it's time to go, all of that nothing he did in the home doesn't matter. The debts are mutual, the alimony is payable and the insult never goes away.

This brings us to the concept of Marital Misconduct that more states have begun to embrace. Marital Misconduct is defined differently in each but generally it is conduct that "undermines the marital relationship." It is not, however, simply garden variety bad behavior. Marital Misconduct encompasses fairly egregious acts such as spending money on extra marital relationships or an addiction of some kind.

Most states that do recognize it do so only when that behavior has direct economic consequences. For instance, if a spouse gambles away a portion of the couple's income or spends money in the pursuit and maintenance of an extra marital affair, that will be taken into consideration in the division of property and/or the amount of alimony to be awarded.

Some states go beyond that though and statutorily outline behavior that will be considered as marital misconduct even when the economic cause and effect isn't as clear. They include things like habitual drunkenness or addiction, adultery, domestic violence, or cruel and abusive behavior.

Unfortunately, not every state is on board. Some have statutorily determined that Marital Misconduct should not be taken into consideration in either the award of alimony or division of property. The rationale? Clarity and consistency. The result? Insult on top of injury.

Don't misunderstand me, I don't believe the court system should be required to sift through the mire of every bad act one spouse has visited on another. The system is not design to nor should it be the arbiter of hurt feelings. Besides, the evidentiary complications of that kind of thing are enormous. Proceedings would become protracted, painful and in the end totally indecipherable.

A court, however, can address the big wrongs and I think they should be required to do so. I think Marital Misconduct should be considered by every court, but they can't do it until their state legislatures permit it. I think we should make it a point to make that point with them. Yes, it will make things a bit more difficult for the court but I think it is lazy to punt on the issue. Lady justice should indeed be blind in that your access to justice should not depend on who you are. But she should not be deaf and dumb as well. People out to be held to account for what they do especially when you're asking someone else to pay for it.