No-fault divorce clients can become distressed or enraged when they learn that the court is not interested in marital misconduct when reaching an equitable outcome. Here are four perspectives that may console clients who want a moral component to their no-fault divorce.
By William B. Reingold, Jr., Family Lawyer
Every state has at least some version of no-fault divorce, but some states take this concept one step further by eliminating fault or evidence of marital wrongdoing as a consideration in awarding property or alimony. Perhaps unsurprisingly, many clients in these states will have a difficult time wrapping their heads around the notion of disregarding marital misconduct in reaching an equitable outcome.
Even when they grasp the concept in the abstract, they frequently drift into positions stemming from beliefs that the other spouse’s fault caused the marriage to fail. Many are practically bursting at the seams to talk about the other spouse’s shortcomings – it’s not that this is the main thing on their mind, it’s that this is the only thing they can think about.
Often these feelings manifest in the form of retaliation – “he cheated on me for years, so shouldn’t there be legal repercussions?” These spouses want a moral component to their divorce. A natural question for family lawyers is: “How should we respond to clients struggling with this form of (arguably justifiable) vindictiveness?”
4 Perspectives to Offer to No-Fault Divorce Clients Seeking Moral Justice
In the event of trial, here are four perspectives you could offer to clients looking for moral vindication that may give them some type of solace.
1. Lingering on past misconduct in the marriage will likely yield little (if any) return.
Judges see these cases every day, and they have seen it all. One judge in Pennsylvania observed that “[d]ivorce brings out the worst in every individual; anxiety, emotion, anger, and revenge run rampant.” Minich v. Cty. of Jefferson, 919 A.2d 356, 359 (Pa. Commw. Ct. 2007); see also Esther Rosenfeld et al., “Confronting the Challenge of the High-Conflict Personality in Family Court”, 53 FAM. L.Q. 79, 99 (2019): “The emotional toll of a never-ending divorce is hard to overstate.”
It doesn’t help that rules of evidence like hearsay are loosened in bench trials, opening the door to judges hearing all sorts of taboo-laced testimony. Save those new to the bench, judges are likely very hardened from their time hearing these cases, and appeals to the other spouse’s failings simply will not affect them the way your client hopes.
But not all is lost. There are other avenues for having your client’s story be told. For example, cases in Washington involving children may utilize a parenting evaluator to file a report offering custody recommendations; and these evaluators will, amongst other things, listen to your client’s concerns and account for what led to the parties’ marriage ending – a possible means to show how one’s prior behaviors might adversely affect their ability to parent. See WASH. ADMIN. CODE § 246-924-445(c), which requires the evaluator to factor “[e]ach parent’s past and potential ability to perform parenting functions”. Offering clients the ability to express their frustrations through appropriate avenues may give them at least some catharsis that accords with the law and reality of the judge’s view from the bench.
2. Forces outside of the legal system may serve as a form of karmic justice.
Eric Posner has written extensively on what he refers to as “nonlegal mechanisms of cooperation,” including gossip, ostracism, and disapproval from others. See Law and Social Norms (Harvard University Press, 2002) by Eric Posner Certainly, the client should refrain from bad-mouthing their spouse. Yet they may take comfort knowing that their spouse might well suffer consequences from family and other members of the community. Such societal pressures are less impactful in our modern times where there has been a gradual disintegration of community, but they still carry weight.
Consider the stigma affixed to politicians who contravene traditional or ordinary family values, or how Americans generally find marital infidelity to be wrong. In 2001, a Gallup poll showed that 89% of people found cheating to be morally wrong, and only 9% found this morally acceptable in 2022 – for some sobering context, the same poll from 2022 found that 11% of those surveyed in 2022 found human cloning to be morally acceptable. See Megan Brenan, “Americans Say Birth Control, Divorce Most ‘Morally Acceptable’,” GALLUP (June 9, 2022). Although consensus regarding what is taboo will naturally reorient with each passing generation, particular unsavory behaviors will likely (or at least presently) remain unseemly by most community standards.
3. Some types of financial transgressions cross a barrier into claims of marital waste (also referred to as marital dissipation), which the judge may incorporate into her ruling.
Boiled down, marital waste is where certain acts that diminish the community property – such as gambling, inordinate drinking, unilaterally gifting or selling property – fall outside the scope of permissible marital spending, meaning the nonwasteful spouse is entitled to reimbursement. Drawing the line between fault and waste in a no-fault state can be troublesome. In Washington, “marital misconduct,” which a court may not consider in awarding property or alimony, “refers to immoral or physically abusive conduct within the marital relationship and does not encompass gross fiscal improvidence, squandering of marital assets or . . . the deliberate and unnecessary incurring of tax liabilities.” In re Marriage of Steadman, 821 P.2d 59, 62 (Wash. Ct. App. 1991). A waste claim may therefore be apt depending on the financial issues the opposing spouse brought to the marriage. But be mindful that this might give your client false hope that there will be some recompense, so broaching this subject with them at all is a matter of your professional judgment given:
1) the client’s mindset,
2) your insight into the economic state of affairs during the marriage, and
3) your determination as to whether excavating through tomes of financial records would yield a large enough return for the work.
4. Judges in no-fault states are still charged with reaching an equitable outcome notwithstanding a statutorily-mandated disregard for marital misconduct.
Judges are human. They grapple with ethical dilemmas like the rest of us, the difference being that they occupy a role in which scores of litigants seek justice from them day in and day out. Fundamentally, they want to do the right thing in these distinctly personal cases based on all available arrows in their quiver. See The Modern Family Court Judge: Knowledge, Skills, and Skills for Success (Honoring Families Initiative, 2014) by Natalie Anne Knowlton: “Divorce, separation, and parental responsibility cases often present complicated emotional and non-legal issues, requiring a family court judge to have familiarity with theories and research in disciplines such as social work, psychology, and dispute resolution.”
Legislatures, for their part, are cognizant that divorce actions are grounded in equity. Concepts like alimony and unequal divisions of marital property exist for that very reason, and the judges are afforded wide discretion in making these awards based on what is deemed equitable for that case. Let us stick with the example of infidelity: assume that the financially disadvantaged spouse was the one guilty of cheating; the judge, cognizant of what transpired during the marriage based on testimony and evidence adduced at trial, has the latitude to set or limit the amount of alimony or divisible property in a manner she feels just under the circumstances. In other words, the courts and legislatures want to ensure that the right decisions are made, and our justice system is designed to curtail unjust results – even bereft of fault considerations.
William B. Reingold, Jr., exclusively practices family law in downtown Seattle at Lasher Holzapfel Sperry & Ebberson. An avid legal writer in his spare time, William has two law review articles that will be published in 2023, one of which will be a comprehensive study of summary judgment in Washington family law. www.lasher.com
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