Should fault or misconduct be considered when dividing marital assets or alimony in divorce?

law-related-object-set-book-gavel-scale-justice-31723205American law is sharply divided on the question of whether “marital misconduct” should be considered in allocating marital property or awarding alimony. Prior to 1968, consideration of such misconduct, or “fault,” was almost universally allowed. The two decades that followed saw considerable change in the law. The Uniform Marriage and Divorce Act (UMDA), initially approved in 1970, provides unambiguously that both allocation of marital property and determinations of spousal maintenance be made “without regard to marital misconduct.” Published surveys typically report that approximately half the states now share the Uniform Act’s position. These Principles do as well. As the division amongst the states illustrates, however, the question is not without difficulty. Nonetheless, the position taken by the Principles on this question follows from both the goal of improving the consistency and predictability of dissolution law, and the core tenet that the dissolution law provides compensation for only the financial losses arising from the dissolution of marriage. Moreover, the rationale for excluding fault from the dissolution law has been strengthened since adoption of the UMDA by changes in the tort law, which in most states now recognizes claims between former spouses that might once have been excluded by blanket rules of spousal immunity. In consequence the debate over fault in dissolution must be reframed: the question now is not whether the law should provide a remedy for certain forms of spousal misconduct, but whether that remedy should be provided in the tort law or in the law of marital dissolution.

Currently in Illinois, Illinois is a no fault state. This means that fault is not factored into the alimony award or division of marital assets.

See In re the Marriage of Rebel for more. (Wife filed for divorce from husband, citing irreconcilable differences and revealing that she was romantically involved with her boss. In granting the divorce, the trial court, among other things, distributed the marital property to reflect a $356,769 disparity in favor of husband. Reversing and remanding for reconsideration of the property distribution, this court held that it could not determine whether the distribution was equitable, because the trial court had not adequately articulated reasons justifying its calculated disparity in favor of husband. The concurring opinion argued that the court should adopt the Uniform Marriage and Divorce Act’s majority position, which provided unambiguously that the allocation of marital property was to be made without regard to marital misconduct, and which limited the consideration of fault as a factor in property distribution only to economic fault. Rebel v. Rebel, 833 N.W.2d 442, 452.)

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