The Consideration of Fault in Division
Laura W. Morgan
Most states, by statute or case law, hold that fault is not
relevant in equitable distribution. A few states continue
to consider fault, however, and even in those states that
dont officially consider fault, they have found a way
to consider fault by considering egregious physical fault,
and by considering economic impact on the marriage.
This article will briefly survey these trends.
The leading case holding that fault is not a factor in equitable
distribution is Chalmers v. Chalmers, 320 A.2d 478
[E]ach spouse contributes something to the establishment
of the marital estate even though one or the other may actually
acquire the particular property. Therefore, when the parties
become divorced, each spouse should receive his or her fair
share of what has been accumulated during the marriage. The
concept of fault is not relevant to such distribution since
all that is being effected is the allocation to each party
of what really belongs to him or her.
320 A.2d at 483. Accord Hartland v. Hartland,
777 P.2d 636 (Alaska 1989); Hatayama v. Hatayama,
818 P.2d 277 (Haw. Ct. App. 1991); Noah v. Noah,
491 So. 2d 1124 (Fla. 1986) (expressing concern that considering
fault would destroy much of the benefit of no-fault divorce);
In re Getautas, 544 N.E.2d 1284 (Ill. Ct. App. 1989);
In re Marriage of Goodwin, 606 N.W.2d 315 (Iowa 2000);
Boyd v. Boyd, 421 N.E.2d 1356 (Me. 1980); In
re Marriage of Hanni, 997 P.2d 760 (Mont. 2000); Wheeler
v. Upton-Wheeler, 946 P.2d 200 (Nev. 1997); Boucher
v. Boucher, 553 N.E.2d 313 (N.H. 1988); Smith v.
Smith, 331 S.E.2d 682 (N.C. 1985); Erickson v. Erickson,
384 N.W.2d 659 (N.D. 1986); Lemon v. Lemon, 537 N.E.2d
246 (Ohio Ct. App. 1988); Smith v. Smith, 847 P.2d
827 (Okla. Ct. App. 1993); In re Koch, 648 P.2d 406
(Or. Ct. App. 1982); Bowman v. Bowman, 836 S.W.2d
53 (Tenn. Ct. App. 1991); Aster v. Gross, 371 S.E.2d
833 (Va. Ct. App. 1988); Anstutz v. Anstutz, 331
N.W.2d 844 (Wis. Ct. App. 1983).
A few states explicitly consider fault in equitable distribution.
Huntress v. Huntress, 555 So. 2d 1103 (Ala. Ct. App.
1989); Sweet v. Sweet, 462 A.2d 1031 (Conn. 1983);
Sparks v. Sparks, 485 N.W.2d 893 (Mich. 1992); D__L__L__
v. M__O__L__, 574 S.W.2d 481, 486 (Mo. Ct. App. 1978)
(it is inconceivable that the legislature intended for
the conduct of the parties during the marriage
. . . to be minimized out of existence.); Conley
v. Conley, 508 A.2d 676 (R.I. 1986); Woodside v.
Woodside, 350 S.E.2d 407 (S.C. 1986); Young v. Young,
609 S.W.2d 758 (Tex. 1980) (reversing an intermediate appellate
decision that fault is irrelevant); Daitchman v. Daitchman,
483 A.2d 270 (Vt. 1984); Grosskopf v. Grosskopf,
677 P.2d 814 (Wyo. 1984).
Despite the majority rule that fault is not a factor in equitable
distribution, a number of decisions allow the court to consider
unusually egregious fault. OBrien v. OBrien,
489 N.E.2d 712 (N.Y. 1985) (egregious cases which shock
the conscience of the court); In re Sommers,
792 P.2d 1005, 1010 (Kan. 1990) (extremely gross and
rare situations). This is most often applied in the
context of severe spousal abuse. Handrahan v. Handrahan,
547 N.E.2d 1141 (Mass. App. Ct. 1989); Szesny v. Szesny,
557 N.E.2d 222 (Ill. Ct. App. 1990); In re Lewis,
808 S.W.2d 919 (Mo. Ct. App. 1991); Tully v. Tully,
813 S.W.2d 926 (Mo. Ct. App. 1991); Buchheit v. Buchheit,
768 S.W.2d 641 (Mo. Ct. App. 1989); Williams v. Williams,
375 S.E.2d 349 (S.C. Ct. App. 1988).
Further, many courts that reject fault as a factor consider
fault when it has an economic impact on the marriage. Oberhansky
v. Oberhansky, 798 P.2d 883 (Alaska 1990); In re
Marriage of Casias, 962 P.2d 999 (Colo. Ct. App. 1998);
Eckroade v. Eckroade, 570 So. 2d 1347 (Fla. DCA 1990);
R.E.G. v. L.M.G., 571 N.E.2d 298 (Ind. Ct. App. 1991);
Hebert v. Hebert, 475 A.2d 422 (Me. 1984); Chiodini
v. Chiodini, 981 S.W.2d 155 (Mo. Ct. App. 1998); In
re Marriage of Kotecki, 10 P.3d 828 (Mont. 2000); Boucher
v. Boucher, 553 A.2d 313 (N.H. 1983); Smith v. Smith,
331 S.E.2d 682 (N.C. 1985); Dragojevic-Wiczen v. Wiczen,
655 N.E.2d 222 (Ohio Ct. App. 1995); Koch v. Koch,
874 S..W.2d 571 (Tenn. Ct. App. 1993); In re Marriage
of Foran, 834 P.2d 1081 (Wash. Ct. App. 1992). Since
economic fault is clearly a negative contribution to the marriage,
it falls within the scope of the marital partnership theory.
See Boucher v. Boucher, 553 A.2d 313 (N.H. 1988)
(noting that economic misconduct is not fault for purposes
of statute limiting effect of fault on division of property).
Thus, when a partys adultery, spousal abuse, drug or
alcohol abuse, or incarceration has an economic impact on
the marriage, it is a property consideration in the division
of property. It is a kind of dissipation of marital assets.