Divorce Wisdom: Fault in Divorce

Your spouse is a no good cheater so you decide to file for divorce. How will your spouse’s bad acts impact your settlement?
I received a call from a man seeking a divorce. He informed me that he had been working overseas on a job assignment for the past year. During his time away from home, he supported his wife of 22 years by sending her money on a monthly basis to cover all of the household expenses. After completing his work assignment, the husband returned home. The husband finished his work assignment a few weeks ahead of schedule and decided to surprise his wife with his early return.
When the man returned to the marital residence, he found that his home was completely trashed. Walls had been smashed, ash trays were over flowing with butts and there were empty beer cans, liquor bottles and moldy take out food containers covering every inch of the floor. When the husband caught up with his 45 year old wife, he found that she had been partying with their 21 year old daughter’s friends at the house for months. When the home got too trashed, the wife moved out and stopped paying the mortgage from the funds her husband was sending to her.
Okay so not surprisingly, the husband decided to file for divorce. At the time of the filing the facts were as follows:

• 22 year marriage;
• Wife unemployed having been a stay-at-home mother for the majority of the marriage;
• The 2 children were grown and living on their own;
• Husband was employed earning a generous six figure income;
• Husband was living back in the marital home alone, having rescued his home from foreclosure;
• Husband was forced to expend significant sums to make the marital home habitable;
• Wife was living in an apartment with a much younger man; and
• The parties had marital assets totaling approximately $1,000,000.00.

Given the wife’s outrageous conduct, the husband understandably did not want to equally divide the marital estate or provide his wife with alimony/spousal support. Can you blame him? But was the wife’s behavior so egregious to nullify the husband’s support obligations?
The answer most likely is “NO.” However, the wife’s bad acts will most likely lead a court to award the wife less spousal support and less than half of the marital estate. While Michigan is a “no fault state,” the concept simply means that a person does not have to prove fault in order to get a divorce. A party can obtain a divorce in Michigan for no reason other than the desire to end his/her marriage. But fault does play a role in an award of alimony/spousal support as well as in property division.
Since the husband in this case wanted to pursue a fault claim, I made the following type of inquiry, through discovery, to help determine what I believed was a fair settlement under the circumstances:

• How much did the damage to the home impact the value of the home?
• How much were the costs of the repairs to the home?
• How much money did it cost husband to get his home out of foreclosure?
• How much money did the wife spend on her affair?
• What was the total cost of the parties that the wife threw?
• What efforts has the wife made to obtain employment, especially since the parties’ children are no longer minors?

Some of the answers to the questions above can be discovered by sending subpoenas for telephone records, credit card and bank statements. Other information regarding the affair can often be found through sources like Facebook, witnesses and e-mails obtained from the wife’s hard drive computer.
In the case at issue, I would determine the costs expended by the wife’s bad acts and subtract these costs from her share of the settlement. If the home has value after the repairs are made by the husband, I believe the husband also has a claim for all of the equity in the residence.
I do believe, in this case, the wife’s behavior should lead to less than half of the marital estate and a smaller award of support for a lesser period of time than would normally be awarded to a stay-at-home mom, who has been married for 22 years. In cases where the fault is significant, as is the case here, it is still important to take a cost vs. benefit approach to the fault issue. After all the husband has been through, he certainly should not be spending more in attorney fees than he will save in the settlement based on fault. Ultimately, the family court judge assigned to the case has the final say on how heavily to way fault. Therefore, in order to assess the strength of the husband’s position, it is important to attempt to determine how much the issue of fault matters to the judge. Some judges care more about fault than others, but in my experience if the fault is not serious enough, do not waste your money pursuing this issue as a means of obtaining a better award.