While Alabama's no-fault divorce law allows couples to file for and receive a divorce absent a finding of wrong-doing by either party, there may be good reason to pursue a fault-based divorce when the other spouse engaged in marital misconduct.
While some may view allegations of marital misconduct as somewhat of an outdated legal concept, it does in fact still matter. Admittedly, it matters in some cases more than others.
Birmingham Divorce Lawyer Steven Eversole of Eversole Law, LLC recognizes that in some situations, proof of marital misconduct by one spouse can provide a strategic advantage to the other in divorce proceedings.
Generally, misconduct is disregarded as a matter of law unless the divorce is fault-based. (That's why some individuals pursue fault-based divorces, because they know that with ample grounds to prove fault, they stand in a strong position on contentious issues like child custody, spousal support and property division.)
Marital misconduct is, legally speaking, any conduct that undermines a marital relationship. While those divorcing can probably think of a thousand different examples, from a legal standpoint there are only a few broad categories that the courts will recognize.
These categories are spelled out in Ala. Code 30-2-1.
- Commission of a crime before or after marriage
- Habitual alcohol and/or drug abuse
- Domestic violence
Other issues that constitute misconduct (though are not necessarily grounds for fault) might be economic fault (i.e., he or she has a gambling or shopping problem) or certain types of deviant behavior.
Adultery tends to be the most commonly-cited grounds for a fault-based divorce and marital misconduct. However, others, such as addiction or economic fault, can have a profound impact on a couple's acquisition (or loss) of marital property.
Effect of Misconduct on Divorce
Generally, the element of misconduct that is most likely to be analyzed in divorce proceedings is going to be the financial impact.
Alabama is an equitable distribution state, rather than a community property state. What this means is property is divided on the basis of numerous subjective factors, rather than simply splitting the property 50-50.
Generally when it comes to division of property, the courts are going to consider:
- Duration of the marriage
- Earning power of both parties
- Age and physical, mental and emotional well-being of those involved
- Other income
- Contribution by one spouse to education/ career furtherance of the other
- Contribution of a spouse as a homemaker
Additionally, courts may also consider misconduct, particularly insofar as it resulted in depletion of marital assets.
So for example, let's say a man commits adultery and spends a good chunk of money buying gifts for or taking trips with his mistress. This can be taken into consideration with regard to how the court will divide the remaining marital property. It's not so much that husband is being punished as the court is making the division equitable.
Generally, an extramarital affair would not necessarily have a direct impact on matters of child custody and visitation, but that's not to say it won't matter at all. Ultimately when it comes to these issues, the court is most concerned with the child's best interests. If the court deems the presence of one's boyfriend or girlfriend harmful, the court may impose certain limitations and restrictions where child custody is involved.
Those same kinds of restrictions could also be imposed where addiction or abuse is proved.
Economic fault is the kind most likely to result in a financial impact in a divorce proceeding. Adultery could be considered a form of economic fault, for the reasons mentioned above.
However, there are a number of other kinds as well, including:
- Loss of assets
- Concealing assets
- Diversion of marital income or property in order to subsidize an addiction
- Destruction of property
- Abnormal or excessive expenditure of money or credit
- Fraudulent sale or conveyance of a home or other property
- Any unfair action that prevents the court from equitably dividing assets
Some people make the mistake of believing that simply because they are separated and have filed for divorce that marital misconduct (particularly adultery) will not have an impact on the outcome. This is not actually true.
For those that do become involved in a relationship prior to the finalization of a divorce, discretion is advised. Adultery might result not only in one spouse being ordered to give up more than what would otherwise be considered fair, it may also result in a loss of spousal support and other benefits to which that spouse may have been entitled. In fact, Alabama is one of the few states that specifically takes marital fault into consideration when determining an award of spousal support.