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THE COST OF HITTING YOUR WIFE WITH A BARBELL: Fault And The Division Of Marital Property

Tuesday, Aug. 14, 2001

On July 30, a New York Supreme Court trial judge ruled that a man who viciously beat his wife with a barbell because she asked for a divorce should forfeit almost his entire share of their marital property.

Theresa Havell had sought a divorce from her husband, Aftab Islam, after twenty-one years of marriage. A furious Islam attacked Havell early one morning. Three of the couple's six children and a housekeeper tried to stop the attack but serious damage was already done by the time the police arrived: Havell saw her teeth and portions of her jaw fly across the room.

Islam eventually pled guilty to first-degree assault and was incarcerated. But it turned out that holding Islam criminally liable for his egregious conduct was the easy part. What was more difficult was to make him pay financially in divorce court.

The Role of Fault in Divorce

Historically, states did not permit parties to divorce by their mutual consent. Marriage was thought to be a public institution, whose entry and exit were properly restricted by the state. Thus, from the time American states began to permit judges to grant divorces at all (in the mid-nineteenth century), they required that the party seeking the divorce prove the other party was at fault for the marriage's demise.

The grounds for divorce varied across states, with New York permitting divorce only on grounds of adultery, and more liberal states such as California allowing divorce for neglect, abandonment, adultery, commission of a felony, intemperance, and cruelty.

There were myriad problems with the fault system of divorce. The process of dissecting a marriage to find unilateral fault is messy. It is also inconsistent with the reality that many different factors often intersect to bring down a marriage; the idea that the end of a marriage is essentially the fault of one party alone is often inaccurate and unfair.

Beginning in the late 1960s, the advent of no-fault divorce revolutionized divorce law. Following California's lead, other states, in rapid succession, began to add no-fault provisions to their divorce laws, allowing couples to divorce without a showing of fault.

Under the no-fault provisions, in lieu of demonstrating fault, couples instead had to show (depending on their state's laws) either that the marriage was irretrievably broken, or that they had been living apart for a set number of years. Many states today retain fault grounds for divorce as well — permitting the party seeking the divorce to choose which path to pursue.

New York remains among the most restrictive states with respect to divorce, requiring proof of fault unless the parties live apart for one year, pursuant to a valid separation agreement that determines their rights and obligations with respect to one another. Havell pursued a fault divorce, which she obtained on grounds of cruel and inhuman treatment.

The Role of Fault in Equitable Distribution: General Principles

Prior to the advent of no-fault divorce, states universally permitted fault to be considered when the court divided marital property. But while states were quick to eliminate consideration of fault in determining entitlement to divorce, they have been less sure as to whether to eliminate consideration of fault in determining how to divide marital property.

Put another way, adopting a no-fault divorce system does not necessarily entail adopting a no-fault marital property system. Should a husband like Islam be deprived of what would otherwise be his share of marital property because he abused his wife? The New York court said yes. But that departs from the approach taken in most states.

In non-community property states such as New York, divorce courts are charged with the task of equitably distributing a couple's marital property. Property acquired before marriage, or during the marriage by virtue of inheritance or gift is generally considered separate property–and each spouse retains control of her separate property.

Marital property, on the other hand, must be equitably divided between divorcing spouses based on factors enumerated in the state's divorce code or established by courts in prior cases. The question is whether one of those factors should be marital misconduct.

Essentially the same question arises when a court considers potential awards of alimony: Should a misbehaving spouse be made to pay more–or get less–alimony because of misconduct?

Whether the Marital Misconduct Has Economic Consequences Matters

Every state permits consideration of fault when the misconduct has economic consequences for the marriage. First, it may be considered when the misconduct has limited the amount of property available. So the profligate husband who has gambled away the marital estate in Vegas may not get an equitable share of what's left — a result which seems to make eminent good sense.

Second, fault may come into play when the misconduct has affected the relative economic need of the parties. Thus, the abused wife who has lost earning capacity due to her injuries or trauma may be compensated through a higher than normal award of alimony, or a greater than equitable share of the marital property. Again, common sense suggests this is a fair resolution.

But what if the fault at issue has no tangible economic consequences? States have failed to reach a consensus about whether, in that event, the marital misconduct should be relevant to property division or not.

According to the American Law Institute's Principles of the Law of Family Dissolution (Proposed Final Draft 1997), states take one of five approaches to this problem. Twenty states disallow any consideration of fault in dividing property. Five do not permit consideration of fault in dividing property, but may in awarding alimony. Three generally reject consideration of fault, but may permit it in cases of extreme misconduct, such as attempted murder. Seven do not consider fault for property distribution but give courts wide discretion to consider it for alimony purposes. Finally, fifteen states permit fault to affect both property distribution and alimony awards.

One reason for these divergent approaches may be differing theories about marriage. In states that treat marriage as a partnership somewhat akin to a business partnership, the goal is to split the proceeds fairly between the partners when it ends. Under that approach, non-economic fault is irrelevant.

Other states have not gone as far in implementing the partnership theory of marriage. For them, it is not inconsistent to consider fault in allocating marital property.

The Role of Fault in Equitable Distribution: The New York Approach

New York, where the Havell case was decided, falls in the middle of the continuum set out by the American Law Institute. New York's divorce statute generally directs courts to consider 13 factors before deciding how to apportion marital property. These factors include the extent of income and property, age and health of the parties, duration of the marriage, source of income, and future financial circumstances. But courts are also permitted to consider "any other factor which the court shall expressly find to be just and proper."

Is fault such a factor? The Havell court acknowledged that generally it is not. But it also noted that misconduct that "shocks the conscience" may mean that fault can be a "just and proper" factor in the division of marital property. Thus, in at least two prior New York cases–where a husband had tried to murder his wife, and another had raped his stepdaughter–the fault of the husbands had been taken into account in property division.

It was based upon these precedents that the Havell court awarded the entire marital estate to Havell — leaving Islam with only a small percentage, which had been awarded to him in a prior proceeding.

As with the two precedents, Havell's extreme circumstances meant that its holding was relatively limited: When one spouse attempts to murder the other, the usual showing that marital misconduct had an economic impact on the marital estate is not necessary.

Why We Should Hesitate Before Using Fault to Divide Property

There is good reason to be hesitant about importing fault principles into divorce proceedings, even if only to determine property allocation. Many of the problems that plagued divorce law before the no-fault revolution will only be resurrected if fault is considered in property division.

At the same time, it seems grossly unfair, in the case of a wife like Havell, to say that she and her husband should walk away from their financially successful but otherwise miserable marriage on equal footing. It may be, then, that New York has struck the right balance by reserving consideration of fault to those cases that indeed "shock the conscience."

Joanna Grossman, a FindLaw columnist, is an associate professor of law at Hofstra University, where she teaches family law. Her other columns on marriage and divorce may be found in the archive of her columns on this site.

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