'It wasn't me': The role of fault in divorce

Michigan is a no-fault divorce state. That means that you can wake up tomorrow, decide you don't like the color of your husband's eyes and file for divorce. While you don't need a "fault" in order to start the divorce proceedings, some faults do come into play during the course of the divorce. So what faults can you punish your spouse for in the divorce? Do affairs and questionable behavior really matter in the Court's eyes? Every case is different, which is something of a mantra that my clients hear repeatedly during their proceedings. But I still can't stress it enough - your case is going to be considerably different from that of your co-worker and fellow cubicle dweller Lucy (who has already established in her mind that no one's divorce could be worse than hers). Even if this is your first or sixth divorce (yes, I'm serious), the circumstances you find yourself in usually vary greatly from your past experiences or those of your friends. Fault of a party can be looked at by the Court in determining spousal support and property division; in fact, one of the spousal support factors the Court considers is the past relations and conduct of the parties. However, before you start airing your husband's dirty laundry in a public courtroom or pleadings (let's not forget anyone off the street can go into the courthouse, hand over her car keys and peruse your entire public divorce file), you need to think about whether or not you created any of those stains. Trust me, the mud-slinging rules in divorce are a free-for-all and often end up like a WWE match - but there are no attractive ring girls in bikinis parading around to lighten the mood. Considering most of my colleagues are male, this is a major disappointment. There are some cases where I can honestly say "it's mostly his fault" or "it's mostly her fault" but those instances are rare. More often both parties led to the breakdown of the marriage but not to the extent that either one will be severely punished in the final judgment. In my opinion, affairs and questionable behavior are becoming less important in determining the outcome of a divorce. First, I think it's becoming less surprising (and some might argue more acceptable) to have those clandestine trysts. It doesn't make it right, but when people tell me that they know or suspect that their spouse has cheated, I barely blink. The more common affairs are, the better chance that they are working their way into the pseudo-norm. Second, affairs are not always that easy to prove. That "nagging suspicion" gets me nowhere in court and only winds up costing the client serious cash when they allow their suspicions to impede negotiations and settlement talks. If you can't verify it, you could wind up looking like you're on a major smear-campaign as you try to prove that he was Client No. 10. There is a huge difference between what you know and what you can prove in court. Pictures, emails, cards or receipts for bling that you're not wearing are great, but they don't surface very often. Also, keep in mind that courts are not inclined to consider any relationships that began after separation or filing of the divorce. Whatever you suspect or even know will unfortunately never matter as much as you want it to. With today's economy, it's harder to secure large property settlement awards or spousal support because your man lost his job or isn't getting those expected commission checks. Fault seems to matter less when there isn't anything worth awarding - half of zero still equals zero. However, for all of you who are calling your favorite motel as you read this, you shouldn't breathe a huge sigh of relief, because it's just my opinion. And we all know what those are like. ---------------- Marie E. Matyjaszek is an associate attorney at the Law Office of Robert Matyjaszek PLLC, Jackson, Michigan. She can be reached at (517) 787-0351 or by e-mailing her at matyjasz@hotmail.com. Published: Wed, Mar 17, 2010

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