Michigan is a purely no-fault divorce state, meaning that the plaintiff filing for divorce does not have to prove any circumstances such as impotence, cruelty, drunkenness, domestic violence or even infidelity. The plaintiff only needs to allege that “there has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved”. MCL 552.6(1). No other grounds need to be alleged and no other grounds will be considered by the circuit court judge.
What if the marriage was destroyed by one spouse engaging in an extramarital affair? Does he or she get out of the divorce without any consequences to his or her infidelity? It is true that the existence of fault is not required to file for divorce, but it can play a role in the resolution of several issues that are related to the outcome of the case. The judge can certainly consider the wayward spouse’s extramarital conduct in deciding matters such as child custody, parenting time, spousal support and property division.
I. PROPERTY DIVISION
The Michigan Supreme Court held in Sparks v Sparks, 440 Mich 141, 159-160; 185 NW2d 893 (1992) that judges should consider the following factors whenever they are relevant to the circumstances of the case to determine a fair and equitable division of property:
- Duration of the marriage
- Contributions of the parties to the martial estate
- Age of the parties
- Health of the parties
- Life status of the parties
- Necessities and circumstance of the parties
- Earning ability of the parties
- Past relations and conduct of the parties
- General principles of equity
Fault does play a role in the division of property. If one party has been substantially at fault for the breakdown of the marriage by engaging in an extramarital affair, then the court may award less property to the unfaithful spouse than it does to the party that honored his or ger marriage vows. In Richards v Richards, 310 Mich App 683; 874 NW2d 704 (2015), the Michigan Court of Appeals upheld a 55/45 split of the property when it considered the defendant’s affair as a contributing factor to the breakdown of the marriage. Infidelity is relevant to weighing the factors of past relations, conduct of the parties, and general principles of equity.
II. ALIMONY AND SPOUSAL SUPPORT
The Michigan Court of Appeals held in Beason v Beason, 435 Mich App 791; 460 NW2d 207 (1990) that judges should consider the following factors whenever they are relevant to decide if spousal support should be awarded and how much:
- The past relations and conduct of the parties
- Length of the marriage
- Ability of the parties to work
- The source and amount of property awarded to the parties
- The age of the parties
- The ability of the parties to pay alimony
- The present situation of the parties
- The needs of the parties
- The health of the parties
- The prior standard of living of the parties and whether each is responsible for the support of others
- General principles of equity
Fault is a factor in considering alimony. In Feldman v Feldman, 55 Mich App 147; 222 NW2d 2 (1974), the Michigan Court of Appeals held that a wife was properly denied alimony due to her adulterous affair, among other things. Infidelity is relevant to the judge weighing the factors of past conduct of the parties and general principle of equity.
III. CHILD CUSTODY
MCL 722.23 lists the “best interests of the child” factors that the trial court must consider when making a custody determination:
- (a) The love, affection, and other emotional ties existing between the parties involved and the child.
- (b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
- (c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
- (d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
- (e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
- (f) The moral fitness of the parties involved.
- (g) The mental and physical health of the parties involved.
- (h) The home, school, and community record of the child.
- (i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
- (j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent.
- (k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
- (l) Any other factor considered by the court to be relevant to a particular child custody dispute.
Factor (f), moral fitness, relates to a person’s fitness as a parent and may consider infidelity where appropriate. However, it is not enough that a parent is engaged in an extramarital affair, but that the child was either aware of it or that parenting ability was affected by it. In Fletcher v Fletcher, 447 Mich 871; 526 NW2d 889 (1994), the Michigan Supreme Court stated:
- “To evaluate parental fitness, courts must look to the parent-child relationship and the effect that the conduct will have on the relationship. Thus, the question under factor f is not ‘who is the morally superior adult’, the question concerns the parties’ relative fitness to provide for their child, given the moral disposition of each party as demonstrated by individual conduct. We hold that, in making this finding, questionable conduct is relevant to factor f only if it is a type of conduct that necessarily has a significant influence on how one will function as a parent.” Id at 886-887.
How far does it have to go? In Berger v Berger, 227 Mich App 700, 713; 747 NW2d 336 (2008), the Michigan Court of Appeals upheld the trial court’s finding against a defendant on factor f due to an “affair with plaintiff’s cousin, who was the children’s nanny, as evidence of character flaws that do reflect directly on defendant’s parenting ability.” “Specifically, defendant chose self-gratification over the children’s interests and lacked insight and judgment regarding the potential effect of his actions on others, including the children.” In short, the judge will not hesitate to punish a parent when his or her conduct has a direct impact on the care of the children.
If infidelity is a contributor to the breakdown of the marriage, then proof of its extent may create a significant advantage to the innocent spouse with respect to property settlement, spousal support and custody issues. Unfortunately, extramarital conduct is not easy to prove. In our age of smart phones and websites specifically tailored for infidelity, covering up an affair is easier than ever. The aggrieved spouse may have to look through Internet histories, phone records, credit card receipts and even work schedules to find evidence. It may even be necessary to hire a private investigator to acquire information to confirm your suspicions. A skilled family law attorney can advise you on the best strategies to pursue.
If you or a loved one are going through divorce and need legal representation, do not hesitate to contact the experienced lawyers at Kershaw, Vititoe & Jedinak PLC.