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Maintenance of Marital Misconduct as a Factor in Property Division in Divorce

Michigan Bar Journal
March 1992

Well prior to the passage of Michigan’s "No-Fault" Divorce Act, "marital misconduct" was a relevant factor for consideration in the division and distribution of property in divorce. After its passage, case law remains also well settled – fault is relevant.

The issue of whether or not to maintain fault, as a continuing factor in the division of property, is presently being considered by our Supreme Court. Recently, two Justices have suggested that marital misconduct should no longer be a factor. It is the position of the State Bar of Michigan, Family Law Section, that misconduct is properly a factor and it be retained as such.


The "no-fault revolution" of the late 1970’s, early 80’s, saw every jurisdiction enact statutes with at least some "no-fault" features. Yet, most also recognized marital misconduct, and maintained it in one form or another.

The Michigan statute governing the "decree" of divorce, as opposed to support and property distribution is without reference to marital misconduct. MCL 552.6 states:

"The Court shall enter a Judgment dissolving the bonds of matrimony if evidence is presented in open Court that there has been a breakdown in the marriage relationship to the extent the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved."However, statutes governing division of property and support are couched in the language of equity.

MCL 552.19 states:

"Upon the annulment of a marriage, a divorce from the bonds of matrimony or a judgment of separate maintenance, the court may make a further judgment for restoring to either party the whole, or such parts as it shall deem just and reasonable, of the real and personal estate that shall have come to either party by reason of the marriage, or for awarding to either party the value thereof, to be paid by either party in money." (Emphasis added.)

MCL 552.23 states in part:

"Upon entry of a judgment of divorce or separate maintenance, if the estate and effects awarded to either party are insufficient for the suitable support and maintenance of either party and any children of the marriage as are committed to the care and custody of either party, the court may further award to either party the part of the real and personal estate of either party and alimony out of the estate real and personal, to be paid to either party in gross or otherwise as the court considers just and reasonable, after considering the ability of either party to pay and the character and situation of the parties, and all the other circumstances of the case." (Emphasis added).

MCL 552.27(D); MSA 225.105(D) states:

"Award division between the husband and wife of the real and personal estate of either party or of the husband and wife by joint ownership or right as the court considers equitable and just." (Emphasis added)

MCL 552.401; MSA 25.136 states: 

"The circuit court of this state may include in any decree of divorce or of separate maintenance entered in the circuit court appropriate provisions awarding to a party all or a portion of the property, either real or personal, owned by his or her spouse, as appears to the court to be equitable under all the circumstances of the case . . ." (Emphasis added).


Kretzschmar v Kretzschmar, was reviewed and decided by the Court of Appeals shortly after passage of 1971 P.A. 75.

The Kretzschmar Panel reviewed the Legislature’s intent. I determined that the Legislature specifically intended to maintain the historical factors in property distribution, including fault.

The Kretzschmar Court stated:

"The Michigan Law Revision Commission in its 1970 report to the Legislature recommended enactment of a ‘no-fault’ statute, including a revision of the existing alimony, support and property division section. However, when introduced in the Michigan House of Representatives as House Bill 4575, the amendatory language suggested by the Revision Commission had been deleted. Significantly, the Senate, in considering HB 4575 after its passage by the House, added – by way of amendment – modifying language analogous to that originally proposed by the Revision Commission. Of equally crucial important is the fact that the House refused to accept the Senate amendment, whereupon the Senate receded from the amendment and 1971 PA 75 was enacted with no modification of existing MCLA 552.23; MSA 25.103.

Thus, while the Legislature drastically altered the conceptual test to be utilized in granting a divorce by the enactment of 1971 PA 75, it clearly rejected attempts to modify the support, alimony, and property division provision of existing law. An extensive body of case law had developed which delineates the factors to be considered in implementing MCLA 552.23; MSA 25.103. The various factors heretofore held to be relevant, including conduct of the parties, remain relevant to a property adjudication of custody, alimony, support, and property division."


As the commentators have pointed out, the trend toward no-fault divorce grounds was given impetus by rising divorce rates and public sentiment that traditional divorce laws should be updated to reflect the realities of modern day marriage with all its fragility. Marriage seldom breaks down over a single act sufficient to cause an irreparable breakdown.

However, support for no-fault, especially as the sole ground by either statute or case law, was by no means unanimous then or now. No-fault and "easy" divorce were viewed as inherently destructive to the family unit and violative of long-standing public policy to encourage and foster marriage.

While on one hand, there appears to be a trend to diminish the impact of fault, nationally it is clear that very few jurisdictions have abandoned the concept altogether. Overlooking the blatant wrongdoer rewards the party that acted inconsistent with long-standing social policy favoring the maintenance of marriage and the family unit.

Some states, either by statute or case law, have opted for a middle ground of permitting the consideration of fault in limited circumstances. Developing nomenclature considers this "egregious" fault, a term not unfamiliar in Michigan case law.

For example, New York case law has limited statutory provisions permitting consideration of fault where the conduct in question "shocks the conscience of the Court." Thus, in New York while adultery is not egregious, a spouse plotting to murder the other spouse, or sexual abuse, "is egregious conduct."

Florida case law, while not uniform, provides that fault may be considered only if it has economic consequences. Virginia also has limited the use of fault where its effect has economic impact on the marital property or its value.

It is also worth noting that the inability of the wronged party to have an adequate remedy in divorce, where there is blatant marital misconduct, is responsible for a trend in intra-family torts. Michigan is following, and perhaps leading this trend.


In some respects, the issue before the Supreme Court – whether to maintain marital misconduct as a factor in property division – is similar in analysis to the dilemma of support for children over the age of 18, recently reviewed and decided by the Court.

In Smith v Smith, the Court enunciated the principle that it is the Legislature that makes law:

"If the legislative body wishes, for whatever purpose, it can wave a magic wand and emancipate [a minor] to suit its convenience …"


"While the legislature has the ability to ‘wave a wand’ this Court is bound to interpret [statute] in accordance with the intent of this legislature." Const. 1963, Art. 3, §2, and Art. 4, §1.

The Amicus Curiae Brief filed by the State Bar of Michigan, Family Law Section, supports maintenance of marital misconduct as a factor for a court to consider in the division of property. The Section contends that present statutes as drafted, and interpreted, properly articulate the law that fault is a relevant factor. Unless and until the Legislature speaks and revises its 1971 enactments, this remains the law.


While there have been some variations tot he theme, the factors for a court to consider in the division and distribution of property have remained constant.
The factors, distilled by case law, are as follows:

(1) duration of the marriage;

(2) contributions of the parties to the estate;

(3) age;

(4) health;

(5) the parties’ station in life;

(6) earning abilities;

(7) needs of the parties;

(8) conduct of the parties;

(9) other equitable circumstances or general principles of equity.

The State Bar of Michigan, Family Law Section contends that sufficient authority exists to require that where marital misconduct is a factor which will have a bearing on the division of property, the trial court should be required to clearly identify and articulate each factor and be required to make findings of fact on each and every factor and the weight accorded to same.

It has been held that failure to make enumerated findings under the factors of the Child Custody Act warrant reversal. In McNamara v McNamara, insufficient findings on various property issues required remand. In Hatcher v Hatcher, the matter was remanded, and was said to be error not to set forth findings of fact regarding alimony.

The State Bar of Michigan, Family Law Section contends that, while it is not desirable to limit the weight the trial court may or may not place on marital misconduct, nor impose limits on review, the foregoing requirement would assist reviewing courts, and in doing so require trial courts to make the more considered decisions, and, hopefully, more constructive assistance for the Bar and public.


Statute, and its interpretation by case law, remains consistent that in Michigan marital misconduct is one factor the court may take into consideration in the division of property, as well as an award of support. Unless and until the Legislature revisits and modifies statute, it should remain the law. Trial Courts should be required, however, to enumerate their findings for each and every factor where fault is taken into consideration and used as a basis for division.

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