Doesn’t fault always matter?
Connecticut is known as a no-fault divorce state. In fact, almost all of the states in this country now have provisions for no-fault divorce. While controversy will continue to exist as to whether no-fault divorce provisions have led to the downfall of marriage in the United States, the question is … doesn’t fault always matter?
Take the small business owner in Fairfield County. If his wife catches him perusing sexually explicit internet chat sites, sleeping with the live-in nanny or masquerading at a New York City nightclub in drag … will his business survive if that information is made public? What about the white collar executive who visits prostitutes during business trips or the female assistant who gets caught canoodling with her boss at the company holiday party … are these revelations really not important in a no-fault divorce proceeding?
For some individuals, such as former New Jersey governor, Jim McGreevey and his highly publicized divorce from Dina Matos McGreevey, airing out each other’s dirty laundry in public is nothing to be concerned about, but for the average Connecticut resident, allegations of fault may be damning to one’s business, one’s reputation and/or one’s financial status.
The grounds for dissolution in Connecticut are set forth at Conn. Gen. Stat. §46b-40(c) and include the following:
the marriage has broken down irretrievably
the parties have lived apart by reason of incompatibility for a continuous
period of at least the eighteen months immediately prior to the service of the complaint and that there is no reasonable prospect that they will be reconciled
wilful desertion for one year with total neglect of duty
seven years’ absence, during all of which period the absent party has not
been heard from
sentence to imprisonment for life or the commission of any infamous
crime involving a violation of conjugal duty and punishable by
imprisonment for a period in excess of one year
legal confinement in a hospital or hospitals or other similar institution or
institutions, because of mental illness, for at least an accumulated period totaling five years within the period of six years next preceding the date of the complaint.
While the statutory grounds for dissolution may include those relating to fault, “irretrievable breakdown,” is the basis normally alleged. As a result, it is not required that one spouse prove fault against the other in order to obtain dissolution of their marriage.
Where fault may play a part, however, is in the Court’s rendering of a financial award under Conn. Gen. Stat. §46b-81, et. seq. and/or in matters of child custody under Conn. Gen. Stat. §46b-56, et. seq. A larger alimony award is surely an area where a Court can weigh fault to favor one party over another.
Conn. Gen. Stat. §46b-81(c) states that “[i]n fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”
In addition, when children are involved, a dissolution decree must also dispose of the issue of child custody. In making a determination regarding child custody, Connecticut follows the “best interests of the child” standard. Accordingly, the cause for the dissolution may be considered if the actions of the parent at fault would anyway affect the best interests of the child.
Tipping the scales with respect to the division of assets in favor of the spouse not at fault and/or custody of one’s children aside, isn’t it really the public nature of the dissolution proceeding that makes fault an issue? While fault may not affect the couple married for ten years who find that their relationship has run its course and want to go their separate ways, the white collar executive who visits prostitutes or the business owner who views child pornography have a lot at risk.
An astute attorney prosecuting a case where the fault is egregious uses fault to his or her benefit in many ways. Often just the suggestion of a public trial leads to swifter settlements. At other times, the spouse at fault may not realize until after the trial has commenced that a written decision relating to the dissolution proceedings will be public record and circulated on the internet or that the documents, testimony and evidence submitted at trial will be available for public inspection. This revelation is paramount in obtaining an advantage at trial when the spouse at fault can not risk public dissemination of the actions that broke down the marriage.
Well-known figures, such as former governor McGreevey, must deal with media exposure every day, but the public nature of a dissolution proceeding must be taken into consideration by all parties when deciding to proceed to trial. If one spouse is clearly responsible for the breakdown of the marriage, fault will undoubtedly be emphasized during the proceedings. While some judges may not be impressed if one spouse is just attempting to humiliate the other, if the fault is particularly unforgiving, it will certainly have a bearing on the award of alimony and/or custody.
More often than not, however, fault is the key factor used by matrimonial attorneys to induce a settlement that is beneficial to their client. It is estimated that, in Connecticut, approximately 90% of all dissolution cases are settled prior to trial. This is done by drafting what is known as a “Separation Agreement”. A separation agreement is executed and acknowledged by the parties and provides for financial and custody arrangements. The case is then claimed for the “uncontested” list and a hearing is scheduled. If the agreement is fair and equitable and jurisdiction is obtained, the dissolution will be approved by the Court.
Settlement is the means preferred in cases where the fault is egregious because the grounds for dissolution are not articulated in a separation agreement. The spouse at fault, therefore, gets a reprieve from public broadcast of his or her indiscretions.
In this regard, while the pundits will continue to debate the negative effects of no-fault divorce on marriage in the United States, the stark reality is … whatever the grounds for divorce, fault always matters.
Our firm in Westport serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton.
If you have any questions or would like to speak to an attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100 for a free consultation. Divorce is difficult, education is power. Call today.
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By: Eileen M. Burger, Esq.