Does Fault Matter?

does fault matterA recent Institute of Continuing Legal Education seminar titled, “Fault: Does it Ever Really Matter?” by Jade J. Edwards reviews the aspects of a divorce that can be influenced by determining fault. In the ICLE materials, Edwards wrote, “Michigan is a “no fault” divorce state. This simply means that a party can get a divorce regardless of fault. However, this does not mean that fault doesn’t matter at all.”

Does Fault Matter in Child Custody?

The primary premise of child custody and visitation is to provide for the best interests of the child after divorce. It is further assumed, unless proven otherwise, that it is in the child’s best interests to have a healthy, supportive, loving and involved relationship with both parents after divorce.

There are 12 Michigan Best Interest factors outlined in the Child Custody Act section “722.23 “’Best interests of the child’ definedthat judges use to determine what custody arrangement is best for the child’s health, safety and well-being. Of these factors, there are three that can be influenced by fault – moral fitness, domestic violence and the catch-all any other relevant factors. Although affairs or DUI’s are not automatic tickets to reduced parenting time, these issues can compound other harmful situations and sway a decision.

Does Fault Matter in Spousal Support?

Spousal Support is also at the discretion of the courts. There are 14 factors that judges use to determine if support (alimony) is appropriate to make sure that both parties will not be impoverished after the divorce. According to the ICLE seminar, factor number 12 is “a party’s fault in causing the divorce”.

Experienced Michigan divorce attorney Kathryn Wayne-Spindler suggests, “The important thing I remind my clients is spousal support is not designed to be punitive. So, don’t expect judges to make up for emotional betrayal with an egregious alimony award.”

Does Fault Matter in Division of Marital Assets?

As with alimony, fault can be considered but not used punitively. Judges have discretion to make the settlement, “fair and equitable.” Although a judge may not take into account undocumented allegations of emotional mistreatment, he or she may give weight to a lengthy or expensive affair that took away from the value of the marital assets. Edwards wrote in the ICLE seminar materials, “Even with the broad discretion given, the Michigan Supreme Court has cautioned against overemphasizing the significance of fault in property division. Berger v. Berger, 227 Mich App 700 (2008).”

Advice for Clients regarding fault

The ICLE seminar cautioned attorneys to avoid giving the impression that fault will substantially impact the outcome of their clients’ divorce in Michigan. Although fault is a factor, it may or may not affect the outcome of the settlement. To promote realistic expectations of the role of fault in a Michigan divorce here are a few Do’s and Don’ts for prospective clients.

DO be honest with your attorney in the initial intake interview. Clients who secretly hope to take their exs for everything they’ve got will be disappointed. It’s far better to find that out early on than to count on a huge settlement or attorneys fees and not get them.

DO write down your expectations

At the outset, write down your realistic expectations and share them with your attorney. Sometimes it can be helpful to revisit the list when in the midst of an emotionally-heated negotiation.

DO consider counseling

The courtroom is no place to be working through the feelings of abandonment, betrayal and vindictiveness that are common and reasonable in many divorces. Judges may respond better to provable facts and rational people. “Tearful pleas or rage-filled tirades just may be a waste of time and could possibly turn the judge against you,” suggests Wayne-Spindler.

DON’T forget about the kids’ needs

Remember that in any divorce involving minor children, the courts will be looking at the best interest of the kids’. Edwards wrote, “when there are children involved, it’s hard enough for them to deal with the divorce without being used as pawns and being placed in the middle, or even being forced to choose sides.”

DON’T involve new boyfriends or girlfriends

As Edwards suggests, it may be comforting to have a new love interest involved for emotional support. But the presence of a significant other can antagonize the former spouse to the point where he/she reacts irrationally resulting in a protracted and expensive divorce battle. Sometimes new boyfriends or girlfriends can add unnecessary pressure to the proceedings. Delay showing off a new romantic attachment until the divorce is final.

DO consider mediation

There are a few advantages to mediation. It’s usually quicker and cheaper. Each party has more ownership of the negotiated settlement. And mediation may allow more voice to unsubstantiated complaints of fault than a trial where the judge can only consider documented fault.

Experienced White Lake Divorce Attorney sees many divorce cases involving fault every year and can advise clients what to expect regarding child custody, alimony and division of assets. Contact the Milford, Michigan law office of Kathryn Wayne-Spindler and Associates for a free legal consultation at 248-676-1000. The family law attorneys at Kathryn Wayne-Spindler & Associates help clients throughout Southeastern Michigan including Oakland, Wayne, Washtenaw, Genesee and Livingston counties. They handle cases in Milford; Highland; Hartland; White Lake; Walled Lake; Waterford; Commerce; West Bloomfield; Howell; South Lyon; Brighton; New Hudson; Holly; Grand Blanc and many more local communities.

Written and Posted by Christine Donlon Long, Communications’ Specialist for Kathryn Wayne-Spindler & Associates