October 2002

The Consideration of Fault in Division of Assets

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 don’t 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 (N.J. 1974):

[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. O’Brien v. O’Brien, 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 party’s 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.