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Posted on in Divorce

Lombard family law attorneyIn many divorce cases, the concept of marital misconduct is often discussed, if only to underscore the fact that any evidence of it is not applicable to most divorce-related discussions. While Illinois law expressly excludes it from playing a role in issues like property division, it is still important to understand exactly what constitutes marital misconduct and what is simply a difference of ideology or opinion between you and your spouse.

Marital Misconduct and Divorce

Marital misconduct is generally defined in the law as conduct of any kind that has helped erode the marriage. This can take many different forms, from the wasteful spending of marital money to adultery to domestic violence. In many states, this kind of conduct can have a negative effect on a spouse’s portion of the marital assets as well as on the amount of parenting time granted to them. The rationale behind such decisions is that someone who shows flagrant disregard for the marriage and its benefits should be entitled to less in a divorce.

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According to Medill, a publication of Northwestern University in Chicago, "states that allow same-sex marriage have some of the lowest [divorce] rates in the country." As the idea of legal LGBT marriage comes to Illinois, many opponents fear that it will ruin the idea of a nuclear family, traditionally consisting of a mother, father, and children. Yet Carolina Staerk, a representative from Equity Illinois, has stated that the state has recently become open to the idea of a marriage equality act. 

According to the Medill, the divorce rate is lowest in states that allow same-sex marriage. "Same-sex couples took their vows for the first time May 17, 2004, as Massachusetts became the first state to legalize same-sex marriage." In 2004, the divorce rate in that state was 2.2 for every 1,000 people. By 2010 that had risen to 2.5 per 1,000 people; still the second lowest divorce rate in the country by state. The state with the lowest divorce rate in 2010? Iowa—another state that allows same-sex marriage.

Chicagoan Scott Fehlan, a lawyer who married his husband in California in 2008, guesses that it’s because gay couples who get married wait longer and are more mature when they tie the know that divorce rates among same-sex marriages are lower than the heterosexual rates. "They are less likely to get a divorce because they have been together for so long, and the opportunity has only recently been granted for them to get married," he told Medill.

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