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Understanding Marital Misconduct

Posted on May 23, 2017 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.

Illinois takes a different approach. The Illinois Marriage and Dissolution of Marriage Act specifically states that marital property—which is all the property acquired during the marriage by either spouse (with rare exceptions)—is  to be divided “without regard to marital misconduct.” Maintenance and child support payments are subject to the same strictures, explicitly excluding any evidence of misconduct by one or both spouses. With child support, the rationale is fairly obvious for such a holding; a child is entitled to support from both parents. Illinois does consider marital misconduct when there is a question of reimbursing the marital estate, such as in cases of dissipation of assets, but not otherwise.

Factors Considered

Illinois courts generally examine a list of factors to consider when attempting to make decisions about marital property, parenting time and the like. The list includes, but is not limited to:

  • The non-marital assets of each spouse;
  • The current and future earning potential of each spouse;
  • The effort or capital put in by each spouse in acquiring the item or asset;
  • The duration of the marriage. In many cases, the longer the marriage, the more the split will stray from an even 50-50;
  • The existence of any prenuptial or postnuptial agreement;
  • The potential tax issues associated with taking on ownership of certain assets, and the viability of such an arrangement; and
  • Any other factor related to the spouses’ ability to support themselves and any children of the marriage.

While property division and other monetary issues are intended to be settled without any reference of any kind to marital misconduct, certain issues of misconduct may be discussed when parenting time is the question. While Illinois courts generally prefer that children have both parents in their lives, certain types of misconduct such as child abuse or other violent crimes may adversely affect a parent’s access to his or children.

Ask an Experienced Lawyer

While it can seem unfair if a spouse cheats or acts inappropriately and is not punished for it, the law is not always black and white. There may be ways to hold your spouse accountable for his or her actions, depending on your case. Contact a knowledgeable Lombard divorce attorney to get the answers to your most pressing questions. Call 630-426-0196 for a confidential consultation with A. Traub & Associates today.



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