Often clients get confused with the concept of misconduct and what impact it may have in the outcome of their Missouri divorce. Some of this confusion may be due to the accepted legal principle of Missouri as a no-fault divorce state. However, this is a separate and distinct concept from marital misconduct. Misconduct during the marriage can impact the financial outcome of your divorce.
The characterization of Missouri as a no fault state simply means that litigants do not need to prove that their spouse committed some form bad action such as adultery or physical or emotional abuse for the family court to grant a divorce. An allegation and evidence that the marriage is “irretrievable broken” is typically sufficient in Missouri.
Clearly the conduct of both parties will have an impact on a custody determination if that conduct impacted the children. (Please visit our earlier blogs for a more detailed discussion on this topic.) But, a parties conduct or misconduct can also have an impact on the division of assets and the award of spousal maintenance. In today’s blog we will focus on how misconduct may potentially impact your property division.
Our Missouri statutes lay out five factors the court must consider in making a just division of marital property. (Section 452.330.1 RSMo) The fourth such factor is the conduct of the parties during the marriage.
So, what constitutes marital misconduct? The answer to this lies within the discretion of your Family Court Judge. But, typical acts of misconduct which may impact the division of assets include the willful dissipation of marital assets by one party without the consent of the other party; physical and/or emotional abuse by one party on to the other; or adultery.
The first challenge to any Missouri family law attorney, when the issue of misconduct is raised in this divorce context is one of proof. The party making the allegation of misconduct must be able to prove that their spouse committed misconduct during the marriage. Depending on the nature of the misconduct it may often be difficult to acquire proof that is both admissible in court and persuasive to the Judge. Therefore, it is advisable as early in the divorce process as possible to discuss the issue of misconduct with your Missouri divorce attorney and to understand what evidence of misconduct will be admissible. Further, if your attorney is experienced, he or she should be able to advise you as to what particular evidence your Judge will find persuasive.
However, Missouri case law has made it clear that an unequal division of assets as a result of misconduct by one spouse is not meant to be punitive in nature to the spouse who is guilty of the misconduct. Rather, the trial judge must determine if the misconduct placed an added burden on the spouse who acted in good faith during the course of the marriage. If the trial judge does find this, the court can make an unequal division of assets to assist that spouse in becoming whole.
There are many examples of how this could take place. But, it is those acts of misconduct where it can be proven that there is a direct financial hardship placed on the other spouse as a direct result of the misconduct where the trial judge is most likely to make an uneven division of the remaining marital assets. For example, if it can be proven that one spouse’ gambling habits, substance abuse or money spent in pursuit of extra-marital affair caused an additional financial burden on the marriage, then the court will be more likely to make an unequal division of assets. When meeting with your Missouri divorce attorney it is important to discuss how your spouse’ misconduct placed an additional burden on you during the marriage.
If you have questions about your specific situation please contact our office today for a free consultation.