Fault and its effect on divorce is always a hot topic. We have a lot of our divorce clients that ask our family law attorneys about the effects of fault in their divorce. Usually, these questions revolve around infidelity, or alcoholism. This question can also be related to drug use, and/or a history of abuse. Utah recently enacted legislation that defines fault so that the District Courts when assessing fault as it relates to alimony have a definition to use in their analysis. This was an important step by our legislators in Utah because it has forced the judges to seriously consider the marriage relationship and the acts of the Parties as it concerns alimony. The statute now states:
(b) The court may consider the fault of the parties in determining whether to award alimony and the terms thereof.
(c) “Fault” means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship:
(i) engaging in sexual relations with a person other than the party’s spouse;
(ii) knowingly and intentionally causing or attempting to cause physical harm to the other party or minor children;
(iii) knowingly and intentionally causing the other party or minor children to reasonably fear life-threatening harm; or
(iv) substantially undermining the financial stability of the other party or the minor children.Utah Code Ann. § 30-3-5 (West)
Other states have used similar statutes and definitions in its analysis. While Utah in applying a definition of fault is in the early stages it is important to look at the other states and how it has been applied in similar circumstances in divorce case law.
In West Virginia, it is a bar to an alimony award if a spouse has had an affair and such is considered fault. While this may seem harsh, it has been enforced by other courts and is ripe for cases involving certain factors of fault.
“In that case, the Court recognized that in 1991 the West Virginia Legislature amended W.Va.Code § 48-2-15, relating to fault, and the Court, in essence, found that fault absolutely bars an alimony award in only three instances. The Court’s conclusion was summarized in syllabus point 2, as follows:
W.Va.Code, 48-2-15(i) (1991), bars a person from alimony in only three instances: (1) where the party has committed adultery; (2) where, subsequent to the marriage, the party has been convicted of a felony, which conviction is final; and (3) where the party has actually abandoned or deserted the other spouse for six months. In those other situations where fault is considered in awarding alimony under W.Va.Code, 48-2-15(i), the court or family law master shall consider and compare the fault or misconduct of either or both of the parties and the effect of such fault or misconduct as a contributing factor to the deterioration of the marital relationship.”
Durnell v. Durnell, 194 W. Va. 464, 467, 460 S.E.2d 710, 713 (1995)
In Louisiana, there is “legal fault” which can affect alimony; “To constitute ‘legal fault’ which would preclude permanent alimony at divorce, the misconduct must not only be of a serious nature, but must also be an independent contributory or proximate cause of the separation; these acts are synonymous with the fault grounds that previously entitled a spouse to a separation of divorce. Mayes v. Mayes, 98-2228 (La.App. 1 Cir. 11/5/99), 743 So.2d 1257.” Bowes v. Bowes, 2000-1062 (La. App. 4 Cir. 8/15/01), 798 So. 2d 996, 999.
Louisiana continues in another case;
We have held that, under this statute respecting an award of alimony to a wife without ‘fault,’ the word ‘fault’ contemplates conduct or substantial acts of commission or omission by the wife violative of her marital duties and responsibilities. A wife is not deprived of alimony after *7 divorce simply because she was not totally blameless in the marital discord. [Citations omitted.] To constitute fault, a wife’s misconduct must not only be of a serious nature but must also be an independent contributory or proximate cause of the separation. [Citation omitted.]
Lagars v. Lagars, 491 So. 2d 5, 6-7 (La. 1986)
When the court uses words like “independent contributory or proximate cause” you are going to need proof. Such proof can be a established by using a private investigator, or other forms. The key here is to have something to present to the judge that shows that whatever act it is that is considered fault that it is an independent contributory or proximate cause in your divorce and without the act you would still be married to your spouse and not seeking a divorce.
If you are facing a divorce where there has been infidelity or any of the other factors as written then you should hire an attorney that has the experience needed to help you in your case. Fault is an argument that can be used at all stages in your divorce action. For example, if you are facing temporary orders you need to argue fault. Our firm has been successful in barring an alimony award at the temporary orders stage. The argument needs to be made and it needs to be made more often.
Call today for a free consultation with one of our divorce lawyers in our Salt Lake City or Ogden office.
