Abstract
Until recently, and in particular until the tremendous increase in the rate of divorce that occurred in this country starting in the early 1960s, the overwhelming majority of marriages ended in death, not in divorce.1 Thus, if the law wished to assure that a fair allocation of the property that had been acquired in the marriage was made to each of the parties upon the termination of their marriage, what was necessary was to assure that our estate laws were equitable, not our divorce laws. If a significant number of marriages did not survive to the death of one of the parties, however, this was no longer sufficient, and it now became necessary to assure that our divorce laws were equitable as well.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Preview
Unable to display preview. Download preview PDF.
Notes
In 1960, approximately 19 marriages per 1,000 were dissolved by death, whereas 9 per 1,000 were dissolved by divorce. After a slight increase in the 1960s, the rate of deaths declined through the 1970s until it reached a level of less than 18 per 1,000 marriages in 1980. Divorces, on the other hand, increased steadily throughout the 1960s and 1970s to the point that 23 marriages per 1,000 were dissolved by divorce in 1980. Arland Thorton and Deborah Freedman, The Changing American Family, 38 Population Bulletin 1, 7 (Washington D.C.: Population Reference Bureau, Inc., October 1983).
She was usually left with another disadvantage as well, since there has always been a great disparity between what women and men have been paid, even for the same work. Even today it has been estimated that a woman who works full-time, all year long, earns only about 60% of that earned by a man. Ralph E. Smith, Editor, The Subtle Revolution—Women at Work, (Washington D.C.: The Urban Press 1979), at 32–34.
Again, this is not to suggest that this solution solved the problem, for it did not. The reason for this is that although a husband’s death did not affect his entitlement to his capital, it did terminate his (former) wife’s right to support. Given the fact that husbands are generally older than their wives, and also have a shorter life expectancy, this exposed divorced women to a very considerable risk. In 1975, the average age of husbands in first marriages was 23.5 years, while their brides’ average age was 21.1 years. U.S. Bureau of Census, Current Population Reports, Series P-20, No. 297 (Washington D.C., 1976). In 1976 his life expectancy was 71.6 years if he was white (66.8 years if he was black) while hers was 78.7 years if she was white (74.9 years if she was black). Smith, The Subtle Revolution, Supra, at 203. It has been suggested that the increased entry of women into the labor force, and their exposure to the competitive conditions that have traditionally affected men alone, may tend to equalize the life expectancies of men and women more in the future. Id., at 110.
Thornton and Freedman, The Changing American Family, 38 Population Bulletin 10 (Washington, D.C.: Population Reference Bureau, Inc., October 1983). Of these Women, 60 to 70% marry within 5 years of their divorce. Id. Additionally, most divorces today are initiated by women. Martha Weinman Lear, The New Marital Therapy, New York Times Magazine, March 6, 1988, at 63, col. 1.
U.S. Bureau of the Census, Current Population Reports, Series P-20, No. 297 (Washington D.C., 1976).
As a general rule, in the absence of an agreement between the parties, a husband was not obligated by law to maintain insurance on his life for his wife’s benefit. Moreover, in the absence of a statutory grant of authority, the court generally held that to require him to do so was to attempt to expand upon his legal obligation and to accomplish indirectly what it could not do directly. Cf. Enos v. Enos 41 A.D.2d 642, 340 N.Y.S.2d 783 (1973). Many equitable distribution statutes have now corrected this by giving the court specific authority to direct one of the parties to maintain insurance on his or her life for the other’s benefit. N.Y. Dom. Rel. Law ∫ 236 (McKinney 1986). Cf. Wilbur v. Wilbur, 130 A.D.2d 853, 515 N.Y.S.2d 636 (1987). See also, Epperson v. Epperson, 437 So.2d 571 (Ala. Civ. App. 1983); Gallo v. Gallo, 184 Conn. 36, 440 A.2d 782 (1981); Brandenburg v. Brandenburg, 425 So.2d 25 (Fla. Dist. Ct. App. 1982); Ritchea v. Ritchea, 244 Ga. 476, 260 S.E.2d 871 (1979); Appelman v. Appelman, 87 Ill. App. 3d 749, 410 N.E.2d 199, 43 Ill. Dec. 199 (1980); Robbins v. Robbins, 16 Mass. App. 576, 453 N.E.2d 1058 (1983); In re Marriage of Young, 26 Wash. App. 843, 615 P.2d 508 (1980); Washington v. Hicks, 109 Wis. 2d 10, 325 N.W.2d 68 (Ct. App. 1982).
For example, Title 12, Section 1289(D) of Oklahoma’s Statutes provides, “The voluntary cohabitation of a former spouse with a member of the opposite sex shall be a ground to modify provisions of a final judgment or order for alimony as support.” See also, Ala. Code ∫ 30-2-55 (1983 & 1986 Supp.); Cal. Civil Code ∫ 4801.5 (West 1983 & 1986 Supp.); Ga. Code Ann. ∫ 19-6-19(b) (1982 & 1987 Supp.); Ill. Ann. Stat. ch. 40 para. 510(b) (Smith-Hurd 1980 & 1987 Supp.); La. Civ. Code Ann. art. 160 (West 1987 Supp.); N.Y. Dom. Rel. Law ∫ 248 (McKinney 1986); Pa. Stat. Ann. tit. 23, ∫ 507 (Purdon 1987 Supp.); Tenn. Code Ann. ∫ 36-5-101(3) (1984 & 1986 Supp.); Utah Code Ann. ∫ 30-3-5(5) & (6) (1984 & 1987 Supp.).
In 1983, 1.9 million single adults were sharing a household with an unrelated person of the opposite sex. This number was six times greater than in 1970. Thorton and Freedman, The Changing American Family, at 11. (It should be kept in mind, however, that these numbers include any two people who are unrelated and members of the opposite sex, including, for example, the situation where an elderly gentlemen and his full-time caretaker reside under the same roof.)
For example, in 1975, approximately 33% of ever-married men between the ages of 26 and 35 had divorced after second marriages, as opposed to 32% in the same age group who had divorced for the first time. Nearly 42% of women in the same age group had divorced for a second time, as compared to 36% who had divorced for the first time. U.S. Bureau of the Census, Current Population Reports, Series P-20, No. 297 (Washington D.C. 1976).
See generally, Gevis v. Gevis, 141 N.Y.S.2d 121 (Sup. Ct. 1955).
As of 1975, only 52% of all second marriages could be expected to last for ten years or more, as compared to 67% of first marriages. Andrew J. Cherlin, Marriage, Divorce, Remarriage, (Cambridge, MA: Harvard University Press, 1981), at 30. Most of the second marriages that ended in divorce in 1975 did so within two years. U.S. Bureau of the Census, Current Population Reports, Series P-20, No. 297.
In 1978, for example, 48% of all married women were participating in the labor force, as compared to a rate of only 20% in 1948. Smith, The Subtle Revolution, Supra, at 4. This rate increased to 51% by 1982. Thornton & Freedman, The Changing American Family, at 24. In addition, the labor force participation rate for women no longer married (divorced, separated, widowed) increased from 29% in 1890 to 42 percent in 1978. Smith, The Subtle Revolution, at 4.
As of 1975, the average age of the husband in a second marriage was 32.8 years, while that of the wife was 29.4 years. The average ages of a husband and wife in a first marriage were 23.5 and 21.1 years, respectively. U.S. Bureau of the Census, Current Population Reports, Series P-20, No. 297 (Washington D.C. 1976).
This is the general rule. Some states, such as Connecticut, do not use the term “marital property,” and instead give the court the power to distribute any property owned by the parties at the time of their divorce, irrespective of when it was acquired. Conn. Gen. Stat. Ann. ∫ 46b-81 (West 1986). Cf., Haw. Rev. Stat. ∫ 580.47(3) (1985) (court may order, divide, and distribute the parties’ estate, “whether community, joint, or separate.”); Ind. Code Ann. ∫ 31-1-11.5-11 (West 1979 & 1987 Supp.) (property subject to equitable distribution upon divorce includes property acquired prior to the marriage as well as separate property); Mass. Gen. Laws Ann. ch. 3, ∫ 208-34 (West 1958 & 1987 Supp.) (court may “assign to either the husband or wife all or any part of the estate of the other”).
The law has generally recognized two exceptions to this. The first occurs when one of the parties takes separate property, which is in his or her own name alone, and puts it in both of their names jointly. This has been held to effectuate a transmutation of the property, changing the separate property into marital property. See generally, cases listed in Chapter 2, note 15. The second is where, although the property has remained in the individual name of the party whose separate property it is, it has appreciated in value during the course of the marriage. In those instances, and particularly where such appreciation can be attributed to the marital effort of either of the parties, that appreciation has been held to constitute marital property. Price v. Price, 69 N.Y.2d 8, 503 N.E.2d 684, 511 N.Y.S.2d 219 (1986). See also, Halpern v. Halpern, 256 Ga. 639, 352 S.E.2d 753 (Ga. 1987) (appreciation due to outside market forces is not marital property, but appreciation due to one party’s active management is marital property). Accord, Brooks v. Brooks, 733 P.2d 1044 (Alaska 1987); Lynam v. Gallagher, 526 A.2d 878 (Del. 1987); Rubin v. Rubin, 204 Conn. 224, 527 A.2d 1184 (1987). Cf., In re Crislip, 86 Or. App. 146, 738 P.2d 602 (1987). The question of transmutation and the appreciation in the value of separate property will be discussed at greater length in Chapter 16, Assets and Liabilities.
Thorton & Freedman, The Changing American Family, at 24.
Some states, like Delaware, limit alimony to a set number of years unless the parties have been married for a long duration, for example, more than 20 years. See, e. g., Del. Code Ann. tit. 13, ∫ 1512 (1981 & 1986 Supp.). Decisions in some states emphasize the fact that maintenance or alimony is supposed to be rehabilitative, that is, to provide for the needs of the ex-spouse, not to punish either party. See, e. g., Theiss v. Theiss, 112 Idaho 681, 735 P.2d 992 (1987); LaRue v. LaRue, 304 S.E.2d 312 (W.Va. 1983).
This will also be discussed in Chapter 5, The Rule of Law in Divorce Mediation.
O’Brien v. O’Brien, 66 N.Y.2d 576, 489 N.E.2d 712, 498 N.Y.S.2d 743 (1985).
An argument could be made that the situation did not cry out for relief. While Dr. O’Brien was certainly left in a better position as a result of his marriage, and his wife’s efforts, it is not clear that Mrs. O’Brien was left any worse off on that account. Although the Court of Appeals, wishing to find a peg to hang its hat on, suggested that Mrs. O’Brien had given up career opportunities in order to assist her husband to obtain his medical degree, the argument was rather strained. Mrs. O’Brien was a school teacher when she married her husband and she was a schoolteacher when she divorced him. The only thing that she gave up was the opportunity to obtain permanent certification. However, it was not something that she gave up permanently, and she could now obtain that certification in but a matter of months. In short, there was not the kind of change in reliance upon the fact of the marriage here—as is so often the case when women give up their careers to raise a family—that is normally the occasion for our concern at where the divorce has left the wife and the motivation for a decision to compensate her in some way. For the purpose of the discussion that follows, however, we will accept the contention that the situation was one that cried out for relief.
In most, but not all states, the court only has the power to distribute property that was acquired during the marriage and prior to the commencement of the divorce action. See, e. g., Pa. Stat. Ann. tit. 23, ∫ 401(e)(4) (Purdon 1987 Supp.); Ind. Code Ann. ∫ 31-1-11.5-11 (West 1987 Supp.). Property acquired subsequent to the commencement of the action, like property acquired prior to the marriage, is separate property and not subject to distribution. Lentz v. Lentz, 117 Misc.2d 78, 457 N.Y.S.2d 401 (N.Y. Sup. Ct. 1982).
In actual fact, Mrs. O’Brien had already remarried by the time the case reached the Court of Appeals.
Other states, such as New Jersey and Kentucky, had been willing to go part of the way, and to give recognition to at least the monetary contribution that had been made by the wife in these instances. Mahoney v. Mahoney, 91 N.J. 488, 453 A.2d 527 (1982); Inman v. Inman, 648 S.W.2d 847 (Ky. 1982). What they had not been willing to do, however, was to go a step further and compensate the wife for the enhanced earning capacity that the license afforded the husband, since they could not find their way to do this without holding that his license was a species of property. See also, Drapek v. Drapek, 399 Mass. 240, 503 N.E.2d 946 (1987); Hodge v. Hodge, 513 Pa. 264, 520 A.2d 15 (1986); Stevens v. Stevens, 23 Ohio St. 3d 115, 492 N.E.2d 131 (1986); Geer v. Geer, 84 N.C. App. 471, 353 S.E.2d 427 (1987); Peterson v. Peterson, 737 P.2d 237 (Utah Ct. App. 1987).
While it might, at first blush, seem inappropriate to have used as an example a decision that is the law of but one or two states, this has been done purposely. It will be far harder for the reader to follow our argument, and to appreciate the very arbitrary character of the procedures employed by the law in dealing with the problems of divorce, were we to use as an example a principle that is the law in all of the states. (In addition to O’Brien in New York, the Michigan Court of Appeals may have reached a similar decision that a professional license will be considered marital property. See, Woodworth v. Woodworth, 126 Mich. App. 258, 337 N.W.2d 332 (1983). Cf., Olah v. Olah, 135 Mich. App. 404, 354 N.W.2d 359 (1984)).
Alaska, Nelson v. Nelson, 736 P.2d 1145 (Alaska 1987); Alabama, Jones v. Jones, 454 So.2d 1006 (Ala. Civ. App. 1984); Arizona, Pyeatte v. Pyeatte, 135 Ariz. 346, 661 P.2d 196 (1982); Wisner v. Wisner, 129 Ariz. 333, 631 P. 2d 115 (1981); California, In re Marriage of Sullivan, 134 Cal. App. 3d 634, 184 Cal. Rptr 796 (1982); In re Marriage of Aufmuth, 89 Cal. App. 3d 446, 152 Cal. Rptr 668 (1979), overruled on other grounds, In re Marriage of Lucas, 27 Cal. 3d 808, 614 P.2d 285, 166 Cal. Rptr. 853 (1980); Todd v. Todd, 272 Cal. App.2d 786, 78 Cal. Rptr. 131 (1969); Colorado, In re Marriage of Graham, 194 Colo. 429, 574 P.2d 75 (1978); In re Marriage of McVey, 641 P.2d 300 (Colo. App. 1981); Connecticut, Zahler v. Zahler, 8 F.L.R. (B.N.A.) 2694 (Conn. Super. Ct., New Haven Dist. 1982); Delaware, Wright v. Wright, 469 A.2d 803, (Del. Farn. Ct., 1983); District of Columbia, Hill v. Hill, 12 F.L.R. (B.N.A.) 1613 (D.C. Super Ct. 1986); Florida, Hughes v. Hughes, 438 So.2d 146 (Fla. Dist. Ct. App. 1983); Severs v. Severs, 426 So.2d 992 (Fla. Dist. Ct. App. 1983); Illinois, In re Marriage of Weinstein, 128 Ill. App. 3d 234, 470 N.E.2d 551, 83 Ill. Dec. 425 (1984); Indiana, In re Marriage of McManama, 272 Ind. 483, 399 N.E.2d 371 (1980); Iowa, In re Marriage of Horstmann, 263 N.W.2d 885 (Iowa 1978); Kentucky, Inman v. Inman, 648 S.W.2d 847 (Ky. 1982); McGowan v. McGowan, 663 S.W.2d 219 (Ky. Ct. App. 1983); Leveck, v. Leveck, 614 S.W.2d 710 (Ky. Ct. App. 1981); Maine, Sweeney v. Sweeney, 534 A.2d 1290 (Maine 1987); Maryland, Archer v. Archer, 493 A.2d 1074 (Md. Ct. App. 1985); Massachusetts, Drapek v. Drapek, 399 Mass. 240, 503 N.E.2d 946 (1987); Minnesota, DeLa Rosa v. DeLa Rosa, 309 N.W.2d 755 (Minn. 1981); Missouri, Lowrey v. Lowrey, 633 S.W.2d 157 (Mo. Ct. App. 1982); New Hampshire, Ruben v. Ruben, 123 N.H. 358, 461 A.2d 733 (1983); New Jersey, Mahoney v. Mahoney, 91 N.J. 488, 453 A.2d 527 (1982); New Mexico, Muckleroy v. Muckleroy, 84 N.M. 14, 498 P.2d 1357 (1972); North Carolina, Geer v. Geer, 84 N.C. App. 471, 353 S.E.2d 427 (1987); Oklahoma, Hubbard v. Hubbard, 603 P.2d 747 (Okla. 1979); Pennsylvania, Hodge v. Hodge, 513 Pa. 264, 520 A.2d 15 (1986); South Carolina, Helm v. Helm, 289 S.C. 169, 345 S.E.2d 720 (1986); South Dakota, Saint Pierre v. Saint Pierre, 357 N.W.2d 250 (S.D. 1984); Tennessee, Beeler v. heeler, 715 S.W.2d 625 (Tenn. Ct. App. 1986); Texas, Frausto v. Frausto, 611 S.W.2d 656 (Tx. Civ. App. 1980); Utah, Rayburn v. Rayburn, 738 P.2d 238 (Utah Ct. App. 1987); Petersen v. Petersen, 737 P.2d 237 (Utah Ct. App. 1987); Washington, Washburn v. Washburn, 101 Wash. 2d 168, 677 P.2d 152 (1984); Gillette v. Gillette, 101 Wash. 2d 168, 677 P.2d 152 (1984); Wisconsin, Haugan v. Haugan, 117 Wis. 2d 200, 343 N. W.2d 796 (1984); In re Marriage of Lundberg, 107 Wis. 2d 1, 318 N.W.2d 918 (1982); Wyoming, Grosskopf v. Grosskopf, 677 P.2d 814 (Wyo. 1984).
In a case decided following O’Brien, a lower court held that the wife’s teacher’s certificate, as well as her education and degree, all acquired during her marriage, were property subject to distribution at the time of the couple’s divorce. McGowan v. McGowan, 136 Misc. 2d 225, 518 N.Y.S.2d 346 (Sup. Ct. 1987).
The court in O’Brien held that a professional license was property not because of any irresistible logic that led it to that conclusion, and not even because it wanted to; but because it had to if it was to be able to make any award to Mrs. O’Brien, as it obviously wished to. Unfortunately, however, and by creating a species of property in the process, the motivation that led the court to that conclusion has all but been forgotten, and all that has been left is a new species of property. The result is that if either of the parties has a professional license that was acquired during the course of their marriage, a court will no longer be able to view the equities, as did the Court of Appeals in O’Brien, which would dictate that one of them should share in the increased earning capacity that the other has by reason of that license. On the contrary, and having converted that license into money in the bank, those equities have now become largely irrelevant, and the sole issue is simply to place a value upon it and to then determine what an equitable distribution of that value would be. See, e. g., McGowan v. McGowan, 136 Misc. 2d 225, 518 N.Y.S.2d 346 (Sup. Ct. 1987). While it could be argued that those equities have not become entirely lost; that all that the court did in O’Brien was to hold that the license was property and not that the nontitled spouse necessarily had an interest in it; and that such interest, if any, still had to be determined based upon the equities of the particular case, this is not really so. Given the thrust of equitable distribution, there is an unexpressed presumption that the nontitled spouse should have some interest in it, and unless that presumption is rebutted by special circumstances, the only question is how much.
While a court in New York may have no authority to do this, the courts of some other states do. Minn. Stat. Ann. ∫ 518.64, subd. 3 (West 1969 & 1987 Supp.) See, e. g., Burr v. Burr, 353 N.W.2d 644 (Minn. Ct. App. 1984) (payments may continue following the wife’s remarriage where the divorce decree provides that payments are to be made until the wife reaches 62 or the husband retires at 62.); Carruth v. Carruth, 212 Neb. 124, 321 N.W.2d 912 (1982) (remarriage shall not automatically terminate alimony.); accord, Ehrenworth v. Ehrenworth, 187 N.J. Super. 342, 454 A.2d 895 (App. Div. 1982); Perry v. Perry, 551 P.2d 256 (Okla. 1976). Cf., Marquardt v. Marquardt, 396 N.W.2d 753 (S.D. 1986) (remarriage establishes a prima facie case for termination of maintenance, which divorced wife can overcome by showing extraordinary circumstances); accord, In re Marriage of Shima, 360 N.W.2d 827 (Iowa 1985); Bauer v. Bauer, 356 N. W.2d 897 (N.D. 1984). But see, Voyles v. Voyles, 644 P.2d 847 (Alaska 1982) (remarriage automatically terminates alimony).
Although the Court of Appeals ascribed to Dr. O’Brien the earning capacity of a general surgeon, this was extremely arbitrary. Putting aside for the moment Dr. O’Brien’s contention that it was his intention to leave his residency in general surgery and to go back to his original residency in internal medicine, which would provide him with less of an income in the future, the fact remained that Dr. O’Brien was neither a surgeon nor an internist. He was simply a general practitioner. Why the court then went and ascribed to Dr. O’Brien an income that he would (might) earn as a specialist in the future is extremely unclear, particularly since the court never attempted to defend the suggestion that Mrs. O’Brien would have anything to do with the efforts that he would expend in the future in becoming a specialist. Be that as it may, and for the purposes of the following discussion, we will accept this as the proper measure of the value of his medical license.
These are not inconsequential considerations. Prior to 1982, the maximum rate for an individual for federal tax purposes was 70 percent. Thereafter it was reduced to 50%. By the Tax Reform Act of 1986, that rate was then reduced to 28 percent for 1988. Similarly, the rate of inflation for 1980 was 13.5%. For 1983, it was 3.2%. U.S. Bureau of the Census, Statistical Abstract of the United States: 1982–83 (103d ed.), (Washington D.C. 1982), at 461. See also, World Almanac & Book of Facts 1988, (New York, NY: Pharos Books 1987), at 109.
This distinction is far more significant than it may at first appear. More importantly, it underscores the terribly arbitrary character of all equitable distribution awards. Putting aside for the moment the question of whether a professional degree or license should be deemed property, what would have been the court’s result had Dr. O’Brien been a pharmacist owning a drugstore, or simply a businessman who owned a business, instead of a physician? If he had been a businessman owning a business, the court would have held that Mrs. O’Brien had an interest in the present value of that business, not its future value. Nehorayoff v. Nehorayoff, 108 Misc. 2d 311, 437 N.Y.S.2d 584 (1981). In short, if she had supported her husband for the same length of time while he built up his business, her interest would have been limited to his present circumstances, not his future circumstances (his enhanced earning capacity).
O’Brien, 66 N.Y.2d at 591–2, 489 N.E.2d at 720, 498 N.Y.S.2d at 751 (Meyer, J., concurring).
Moss v. Moss, 639 S.W.2d 370 (Ky. Ct. App. 1982).
Although the Court of Appeals in O’Brien conveniently ignored it, the fact remains that it was Dr. O’Brien alone, and not Mrs. O’Brien, who was going to have to expend the effort necessary to convert that license into spendable dollars. Accordingly, while Mrs. O’Brien only had to work for nine years in order to be awarded 40% of its ultimate value, Dr. O’Brien would be required to work those same nine years plus an additional 32 more (five more years in order to complete his residency in general surgery, and then the anticipated 27 years in private practice.) Thus, although Mrs. O’Brien only contributed nine years of effort toward the total of 50 years that will ultimately have been devoted by both of them in achieving that degree and converting it into spendable dollars (although she will have only expended 18% of the effort), she was nevertheless awarded 40% of its value. Again, for the purposes of the discussion that follows, we will not take issue with this.
See Chapter 3, note 26, and accompanying text.
The mediator, after all, does not work under the same constraints that the Court of Appeals did. While the Court of Appeals may not have had the authority to direct that the payments to be made by Dr. O’Brien to his wife were to be tax-free, the parties, by their agreement, can so provide. I.R.C. ∫ 71(b)(l)(B) (West 1988 Supp.).
See, e. g., Fla. Stat. Ann. ∫ 61.08(2) (West 1985) (“The court may consider any other factors necessary to do equity and justice between the parties”); N.C. Gen. Stat. ∫ 50-20(c)(12) (1987) (the court may consider “[a]ny other factor which the court finds to be just and proper.”); Va. Code Ann. ∫ 20-107.3(E)(11) (1987 Supp.) (the court may consider “[s]uch other factors as the court deems necessary or appropriate to consider in order to arrive and equitable monetary award.”).
Traditionally, state divorce laws were based upon the concept of fault, and even though the statutes of many states have been amended either to eliminate fault as the basis for a divorce or at least to diminish its importance, the law, nevertheless, has never been quite able to understand divorce apart from marital misconduct. As a result, the concept of fault is still a part of judicial thinking, even if to a much lesser extent. Thus, and while it may not be explicitly a part of the law of a particular state, it still often exists in the background.
The reasons for this are twofold. To begin with, there is an increased awareness on the court’s part that the more modern view is one that discounts fault as a factor in divorce. Secondly, and perhaps more importantly, equitable distribution statutes have shifted the emphasis from fault to economics. To add to that burden the additional requirement that the court must now also assess the praise or blame that should be attributed to the conduct of each of the parties is only to compound the matter further. As a result, and unless specifically directed by statute to consider fault as a factor, courts have generally taken the position that unless such fault is extreme, it will not be considered. O’Brien v. O’Brien, 66 N.Y.2d 576, 489 N.E.2d 712, 498 N.Y.S.2d 743 (1985). However, and this will demonstrate the persistence of this ambivalence, the fact that the court will not consider fault as a factor in the distribution of property does not necessarily mean that they will not consider it as a factor in awarding spousal support. See, e. g., Ala. Code ∫ 30-2-52 (1983); Ark. Stat. Ann. ∫ 9-12-301 (1987); Conn. Gen. Stat. Ann. ∫ 46b-82 (West 1986); Fla. Stat. Ann. ∫ 61.08 (West 1985); Ga. Code ∫ 19-6-1 (1982); Idaho Code ∫ 32-705 (1983); La. Civ. Code Ann. art. 160(A)(l) (West 1988); Md. Fam. Law Code Ann. ∫ 11-106(b)(6) (1984); Mass. Gen. Laws Ann. ch. 208, ∫ 34 (West 1987); Mo. Ann. Stat. ∫ 452.335(2)(7) (Vernon 1986); N.C. Gen. Stat. ∫ 50-16.6 (1987); Pa. Stat. Ann. tit. 23, ∫ 501(b)(14) (Purdon 1987); R.I. Gen. Laws ∫ 15-5-16 (1981); S.C. Code Ann. ∫ 20-3-130 (Law. Co-op 1985); Tenn. Code Ann. ∫ 36-5-101(d)(10) (1984 & 1987 Supp.).
Rights and permissions
Copyright information
© 1990 Springer Science+Business Media New York
About this chapter
Cite this chapter
Marlow, L., Sauber, S.R. (1990). Equitable Distribution and Divorce Mediation. In: The Handbook of Divorce Mediation. Springer, Boston, MA. https://doi.org/10.1007/978-1-4899-2495-7_3
Download citation
DOI: https://doi.org/10.1007/978-1-4899-2495-7_3
Publisher Name: Springer, Boston, MA
Print ISBN: 978-1-4899-2497-1
Online ISBN: 978-1-4899-2495-7
eBook Packages: Springer Book Archive