Augusta GA Divorce Attorney - Fault should be factor in divorce
by Howard Fischer, Capitol Media Services
State lawmakers took the first steps Wednesday to letting one spouse in a divorce case try to get the financial upper hand by claiming the other person behaved badly in the marriage.
On a 4-2 margin the Senate Committee on Public Safety and Human Services voted to repeal existing laws that require a judge decide issues of alimony and child support “without regard to marital misconduct.” The net result, according to all sides, would be to permit introduction of evidence of everything from domestic violence and cheating to wasting money.
What they disagree on is whether that is a good idea.
Current law allows a judge in a divorce case to order either or both parents to pay “an amount reasonable and necessary for support of the child.”
Judges also can order alimony — known in Arizona as “spousal maintenance” — after considering various factors. These range from the question of whether a spouse can be self-sufficient, contributed to the educational opportunities of the other, or the person is so old that it precludes the possibility of gainful employment.
In both cases, allegations of who was at fault in the relationship are legally irrelevant. This proposal by Sen. Linda Gray, R-Glendale, would change that.
Divorce attorney Todd Franks said there may be merits to allowing a judge to consider questions of misconduct. But he pointed out to lawmakers there is nothing in SB 1052 to spell out what kinds of things that includes.
“So it’s really opening up Pandora’s Box,” said Franks, who is the chairman of the Domestic Relations Committee, an advisory panel to the Legislature.
“Does that mean sex? Does it mean sex outside marriage? Does it mean refusal to give sex in the marriage?” he asked. “Does it mean physical abuse? Does it mean verbal abuse, emotional abuse, drug abuse in the marriage?”
And Franks said it even could be interpreted to include overspending, gambling, denigrating the spouse to children, personal or home uncleanliness or even refusal to grow as a person.
Complicating matters, he said, is the question of timing: when did the conduct occur, was it known to the spouse and does it continue to occur.
“If somebody did something 10 years ago, it’s known that it happened, are we going to let them raise it now in a divorce proceeding?” he asked.
But attorney Maria Lawrence said Franks’ concerns are overblown.
“The notion that we don’t have ‘fault’ in divorce is ridiculous,” she said.
Lawrence, who also handles divorce cases, said judges consider issues like domestic violence when determining who gets custody of the children. And she said questions of misconduct also come up in awarding of legal fees.
She said there is no reason to believe that judges won’t be able to use the same discretion in deciding alimony and child support.
Lawrence also said it’s an issue of fairness.
“I’m going to be a little sexist here, but most people that get divorced, the women suffer more financial hardship than the men,” she said.
“The men have the careers, the men have the years behind them and the earning capacity,” Lawrence continued. At the same time, many women stay home to take care of the children or even to take care of the business without getting paid.
“So the earning capacity is completely different,” she said. “To simply divide what we have at the time of the divorce and say, ‘50 percent goes to you and 50 percent goes to you’ is completely inequitable,” Lawrence said. “It doesn’t work because one party has better earning capacity.”
Lawrence backed her argument with several examples.
One involved a woman married for 25 years who home-schooled five children. Her husband left her for “a younger model of his wife” and she got stuck with half the community debt. The other was a Phoenix police sergeant close to retirement whose wife left him and decided to live with her new lover so she got half of his pension.
But Steve Wolfson, who represents the Family Law Section of the State Bar of Arizona, said making ‘fault’ an issue in child support raises issues of its own. He said it would be “an unfortunate and unintended result” if a woman’s infidelity during a marriage resulted in her receiving less money to care for her children.
Nothing in the legislation would affect whether or not a judge grants a divorce. The sole grounds for dissolving a marriage in Arizona are — and would remain — that the union is “irretrievably broken.”
The measure now goes to the full Senate.
Alexandra Gonzalez-Waddington is an Augusta GA divorce lawyer & Georgia Military Divorce Lawyer Augusta Georgia domestic mediator. She is an Augusta military divorce lawyer, GA child custody attorney , and Augusta Georgia child support attorney. She offers mediation for divorce, child custody, and child support.
