DO I NEED TO PROVE FAULT?

Another day, another celebrity marriage breaking up because so-and-so cheated, squandered money, etc., etc. That's a basis for divorce, right?

Celebrity lawyers point to these transgressions as “the basis” for a divorce. Talking about them at length makes for great television, but it is misleading. In most states, there is no need to prove a “basis” for divorce, other than that the marriage is irretrievably broken. That is, one spouse need not prove the other spouse cheated or is otherwise at fault for the marriage’s breakdown. Divorce in the United States is almost exclusively no-fault, and in those few states that consider “fault” as a basis for divorce, fault is more a formality than the be-all-end-all of the case.

Parties are often confused about the part fault plays in a divorce. Each state has different rules, and you should consult a lawyer in your state for the rules specific to your case. In general, however, fault is a mere formality for obtaining a divorce. In Michigan, where I practice, for example, the party filing for divorce must only allege that there has been a breakdown in the marriage relationship to the extent the objects of matrimony have been destroyed and there remains no reasonable likelihood of reconciliation.

Period.

Nothing more.

In fact, most judges will not even let the parties testify about who was “more at fault” for this breakdown to grant the divorce.

This is not to say that fault is completely irrelevant. Most states will consider fault when dividing property and ordering child custody. In Michigan, for example, fault is relevant if the fault is related to marital property (e.g., one spouse secretly incurred debt to fuel a gambling addiction). Fault is also relevant if it reflects on parenting (e.g., one spouse deserted the children for a lover).

WE'RE A NO-FAULT STATE, RIGHT?

YES, BUT...

There’s a common misconception that “no-fault” divorce means fault is totally irrelevant – as if one spouse can have an affair and the affair means nothing because the divorce is “no fault.” That is incorrect. “No-fault” means neither party needs to prove the other party is at fault for the breakdown in the marriage, e.g. with a string of e-mails that chronicle a sordid affair, to obtain a divorce. “No fault” does not mean fault is totally irrelevant to the divorce.

In many states, like Michigan, fault is relevant to alimony, property division and child custody awards. There is a great variety among states because each has its own body of common law (the prior court opinions that may apply to the case) and its own statutes (the law “on the books” from the legislature). However, with the rise of “no fault” divorce statutes in the 1970s, a general trend emerged that fault could be an issue but not “the” issue for divorce. What was once a fault-focused case now became a case focused on fault only as it affected property, the need for or ability to pay alimony, and child custody.

In Welling v Welling, 233 Mich App 708, 592 NW2d 822 (1999), defendant claimed that the trial court had erred in concluding that his alcohol problems constituted marital fault, in its determination of spousal support and property division. The court of appeals affirmed the trial court, holding that the trial court did not clearly err. The court noted that the trial court did not consider defendant’s status as an alcoholic but referred to his behavior while he was drinking. The court, citing Sparks, stated that defendant’s conduct presented a greater reason for the breakdown of the relationship. The court also recognized that the trial court did not give inordinately excessive weight to this factor but also looked at the length of the marriage, the difference in the parties’ earnings, the fact that plaintiff had been out of the full-time workforce for most of the marriage, the fact that plaintiff needed to secure health insurance for herself after the divorce, and the fact that plaintiff had been struggling to make ends meet since the divorce.

Past conduct has long been recognized as a factor in the determination of spousal support. Johnson v Johnson, 346 Mich 418, 78 NW2d 216 (1956) (vile temper, obscene language, accusations of infidelity, and insanity deemed to have forced wife to file for divorce); Ianitelli v Ianitelli, 199 Mich App 641, 502 NW2d 691 (1993) (wife’s cohabitation with third party may not, by itself, be used later to support modification of spousal support); Demman v Demman, 195 Mich App 109, 489 NW2d 161 (1992) (defendant’s actions and uncaring attitude caused marital breakup); McNamara v McNamara, 178 Mich App 382, 443 NW2d 511 (1989), modified on other grounds, 436 Mich 862, 460 NW2d 222 (1990) (periodic spousal support could be used to compensate wife for her assistance in helping plaintiff attain his dental degree); Cloyd v Cloyd, 165 Mich App 755, 419 NW2d 455 (1988); Zecchin v Zecchin, 149 Mich App 723, 386 NW2d 652 (1986) (trial court wrongly found wife at fault because she asked husband to leave marital home; court should have looked at conduct of both parties); Davey v Davey, 106 Mich App 579, 308 NW2d 468 (1981); Abadi v Abadi, 78 Mich App 73, 259 NW2d 244 (1977) (wife feared personal danger from husband); Feldman v Feldman, 55 Mich App 147, 222 NW2d 2 (1974) (wife’s adultery taken into account by court in striking spousal support award); Van Ommen v Van Ommen, 25 Mich App 652, 181 NW2d 634 (1970) (wife’s failure to testify was improperly considered admission of “serious fault”).