Gender Bias in Family Law

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Gender Bias in Family Law

By: Gia M. Conti and Cora Gennerman

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Gender bias can be implicit or explicit and occurs in our daily lives whether we are privy to it or not. We continue to see gender bias in our day-to-day lives, and family law is no exception.

The question becomes, how do we identify gender bias, and what can we do to mitigate or overcome it?

While this article is not exhaustive, it is intended to provide fellow family law attorneys and litigants with tips to navigate gender biases in divorce.

Gender bias occurs when we treat people differently for their perceived gender identity. A common gender bias is that women are more “nurturing” and men are naturally “better leaders” or “bread-winners.” These biases are dangerous in the sense that they sometimes lead peers, judges, neutrals, and attorneys to improperly believe that women should have greater parenting time than men, especially with younger children. Oftentimes, people, including judges, do not realize that they have a bias, much less realize that their biases often play a role in the decisions that they make. Even the law is inherently biased. The Tender Years doctrine was a presumption in common law that mothers should have custody of children in their “tender” years. However, despite the fact that the doctrine has been abolished, we continue to encounter this bias in cases.


Published in Family Advocate, Volume 44, Number 3, Winter 2022. 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

How Courts Hear Children

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How Courts Hear Children

By: Molshree A. Sharma / December, 2021

The Hague Convention aims to expeditiously return children who have been unilaterally removed from their habitual residence by an abducting parent. But what happens when more mature children have their own preferences?


she knew her life had changed forever. David informed her that he was not returning their 13-year-old son, Howard. Rebecca and David had married in Israel, where Howard had been born and raised. Since their divorce, David had moved to the Midwest while Rebecca raised Howard in Israel having received sole custody pursuant to an Israeli judgment. To facilitate David’s parenting time, Rebecca had agreed that Howard could spend a few weeks in the U.S. and a return ticket was purchased. Now, she was told, he was never returning. What could Rebecca do? Which court, in Israel or the U.S., had jurisdiction to determine where Howard should live? How long would the process take to determine it? Was Rebecca’s judgment awarding her sole custody enforceable in the U.S? What weight would Howard’s wishes have in the court’s eyes?


Social media and divorce can be a messy combination

Social Media and Divorce

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Social media and divorce can be a messy combination


Chicago residents who are facing an impending divorce should approach social media with caution for the duration of the proceedings.


Getting a divorce is never an easy proposition. Even when both spouses agree on how to divvy up their assets and liabilities, there are still many emotional aspects of a divorce to deal with. The addition of kids in a divorce further complicates a divorce. In today’s online world, Chicago spouses actually have yet another thing with which to contend and that is social media.


What goes online stays online
It is very easy to post something to a social media site. Removing it, however, is a different thing. Simply deleting a post from a primary view does not really ensure that it is gone. Deleted posts may still be detectable by some means. In addition, posts could have been shared and seen by many people even before they were deleted. This should always be kept in people’s minds.


Opening doors for suspicion
Forbes explains that online posts may open up questions that spur an opposing spouse to investigate things that may otherwise have been left alone. This can include certain bank accounts being reviewed in great depth if one spouse believes that assets may be hidden. For example, photos of extravagant trips can give the impression that one person has access to funds that might surpass what have been disclosed.


Protecting kids
Social posts can be seen by a variety of people and eventually be shown to children of the divorcing parents or to the children’s friends or even teachers and coaches. Depending upon the nature of the posts, this may be embarrassing or hurtful to kids who are already struggling with their parents’ divorce. The Huffington Post notes that this is just one more reason to be cautious with social media during a divorce.


Messaging another concern
In addition to public posts, many social platforms allow private messaging between connected users. These are another avenue via which information can be misinterpreted or seen by the wrong people. Fox Business adds that text messages are another form of communication that should be used with care by divorcing spouses.


What spouses should know
CNBC reports that many couples today are creating social media prenuptial agreements to protect them if they ever get divorced. People already married without such agreements should discuss their situations with an attorney. Learning what type of information can be used against them in a divorce is an important part of making it successfully through a divorce in Illinois.

Collaborative law can take some of the “sting” out of divorce

Collaborative Law

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Collaborative law can take some of the “sting” out of divorce

By: Feinberg Sharma


Splitting couples who can agree to respectfully resolve differences may benefit from the collaborative divorce process.
Divorce can sometimes be ugly. It can be bitter. It could last for years, with a couple appearing in court dozens of times to accomplish very little. There could be tens of thousands of dollars of legal fees while the parties fight back and forth, and their ability to co-parent their children moving forward could be significantly impacted by all the animosity. It could, at the very end, come down to an Illinois family court judge having to make virtually every decision on behalf of the couple, because they simply cannot set aside their anger long enough to accomplish anything.


Thankfully, divorce doesn’t have to be that way. Believe it or not, it actually is possible to end your marriage without getting trapped in the cycle of bitterness and bickering. How, you may ask? Through the process of collaborative divorce.


What is collaborative divorce?
Collaborative divorce is, in short, a non-adversarial way to dissolve a marriage. It involves parties who, together with their attorneys, commit to finding solutions and reaching settlement in an open and honest environment. The parties resolve to work together in a respectful way to address their issues and reach resolution without resorting to litigation. The process has a high success rate in part because both spouses must agree beforehand that, if they fail to reach a settlement and must proceed to court, they will hire new counsel and must start from scratch; this gives everyone involved a real stake in the outcome and a determination to make it work.


The guidance of experts
The collaborative process involves not only the spouses and their individual attorneys, but also a panel of experts there to facilitate agreement. The experts engaged can vary from case to case, but may include:


  • Financial specialists/experts there to analyze the couple’s economic situation, determine whether property is marital or separate in nature and propose various property division options
  • Divorce coaches who not only facilitate the process, but help the couple develop emotional skills necessary to move forward with their lives afterward
  • Child custody and parenting time specialists who make recommendations based upon what would be in the children’s best interests and propose methods that will guide the parents toward respectful co-parenting in the future
  • Religious advisors to ensure that, if necessary, dictates are followed with regard to the religious aspects of divorce


Other benefits
In addition to being less contentious than traditional divorce, the collaborative method is typically more cost-effective and quicker. You also remain in charge of the decision-making at all times, without ceding control to a judge who, though impartial, doesn’t know your family and how his or her decisions will impact you.


All other benefits aside, of most import to some couples, however, is the fact that the process is private in nature. Your family’s proverbial “dirty laundry” won’t be aired in public court, and information you disclose throughout won’t be part of the public record.


Interested in learning more?

Are you thinking of ending your Illinois marriage? Do you want to remain in control of the decisions involved? Can you commit to working with your spouse to find creative solutions? If so, contact Feinberg Sharma today.

Divorce is experiencing a boom among Baby Boomers

Divorce is Experiencing

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Divorce is experiencing a boom among Baby Boomers

More Americans are getting divorced later in life, which comes with unique financial and emotional challenges.
Divorce can be challenging at any age. However, for many couples, Illinois residents included, the longer they are married the more assets and property they acquire. This can make the division of the marital estate particularly complicated for those who have been married for several decades, especially in high-asset divorces.


More Americans are getting divorced at a later age than ever before. National Public Radio states that married people over the age of 50 are twice as likely to split as those of the same age were two decades ago. For example, about 10% of people over 50 got a divorce in 1990, as opposed to 25% today.


Common reasons for gray divorce
Divorce among older couples has been termed “gray divorce.” Numerous reasons, alone or combined, may result in more seniors getting divorced today. These can include:


  • Longer life spans contributing to the desire to have a more fulfilling life at a later age;
  • More women enjoying economic independence and not needing to rely on a husband’s income; and
  • Growing apart after the kids are raised and out of the house.


Despite the heartbreak and setbacks of getting a divorce, it can also be liberating to start one’s life over, even at an older age. The Washington Times notes that certain factors need to be even more carefully considered in a gray divorce. These include dividing retirement accounts and pension plans that have accumulated over the years, as well as any business assets from a joint or individual business. The professionals at Feinberg Sharma have extensive knowledge about valuing and dividing these retirement interests, for qualified plans through the use of a Qualified Domestic Relations Order (“QDRO”), without triggering tax consequences as well as dividing non-qualified plans by using a Domestic Relations Order (“DRO”). We also understand how to value and divide stocks, options, units, phantom stock and the multitude of types of deferred compensation forms being paid to executives today.


Speaking with an attorney
Older couples in Illinois have had a lifetime to build up assets. When you are considering a divorce later in life, you often have more things to worry about than those who are younger. A gray divorce presents unique emotional challenges. Still, many of those divorcing later in life are able to go on to live full, happy lives.


If you’ve been married for many years and are considering a divorce, contact Feinberg Sharma today, as we are experienced family law attorneys who will protect your rights.

Chicago-area couple’s divorce leads to dispute over family pet


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Chicago-area couple’s divorce leads to dispute over family pet

A Chicago-area couple is involved in a lengthy divorce dispute largely centered on custody of the family dog.


Divorce law sometimes struggles to keep up with how families view pets
While child custody and visitation disputes are not uncommon in divorce cases, custody disputes surrounding pets are an area of family law that is relatively new. One Carol Stream couple is learning the hard way how Illinois law can sometimes feel out of step with how pet owners relate to their furry friends. The couple has been involved in a highly contested divorce surrounding who will get custody of the couple’s dog, according to Fox 32 News.


Husband seeks pet custody
The dispute in this case revolves around a 5-year-old Labrador retriever named Pepper. Both the husband and wife each claim that they are best able to care for the dog. The wife currently enjoys custody of Pepper, although the husband claims that it is in the dog’s best interest for custody to either be split between the two or be awarded to him.


The husband had asked the judge to let a pet mediator intervene in the case, but the judge would not allow it. The wife has taken out an order of protection against the husband and she claims that he is simply using the pet as a way to harass her and drag out their divorce. The issue is expected to be decided by a judge in early August.


Pet custody disputes rising
The Carol Stream couple is hardly alone in their plight. According to the Chicago Tribune, a recent survey by the American Academy of Matrimonial Lawyers in Chicago found that 25 percent of respondents had seen an increase in the last five years of pets being mentioned in divorce cases. One Illinois firm even claims it has seen a 60 percent rise in the number of pet custody disputes.


The main problem surrounding such disputes is that Illinois law, like most other states, treats pets largely as property rather than members of the family. In many cases, whether or not the pet’s best interests are taken into account will depend on how sympathetic a judge is to pet owners. Additionally, as the above case shows, custody of a pet can also sometimes be used as a bargaining chip by a disgruntled spouse in order to get a more favorable divorce agreement out of the other spouse.


Contested divorces
A divorce is one of the most emotionally fraught experiences that many people will ever go through. It is no surprise, then, that with emotions running so high that some divorcing couples end up getting drawn into long, disputed divorce cases.


While some divorce disputes are unavoidable, it is usually in a person’s best interests to consult an experienced family law attorney before taking any drastic steps in a divorce. A qualified attorney can use his or her legal expertise to make sure an ex-spouse handles a divorce in the most prudent and responsible way possible.

Experts disagree on the merits of Parental Alienation Syndrome

Parental Alienation

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Experts disagree on the merits of Parental Alienation Syndrome


Parental alienation syndrome first appeared back in the 1980s. The discovery of PAS is attributed solely to Dr. Richard Gardner, a professor of psychiatry. According to Dr. Gardner, PAS describes when a child is essentially brainwashed by one parent to turn the child against the other parent. Not surprisingly, PAS generally arises in the context of highly contested child custody cases.


The conduct that gives rise to PAS can result in a situation where the child is being forced to choose sides in custody proceedings in order to guarantee to one parent a highly favorable custody arrangement. Conduct conducive to PAS, says Psychology Today, consists of acts such as the following:


  • Bad mouthing the other parent
  • Seeking to limit contact with the other parent
  • Attempting to erase the other parent from the life of the child
  • Suggesting that the other parent may be bad or poses a risk of danger


Despite the undeniable fact that PAS testimony is often given by experts both in Illinois and throughout the nation, many in both the psychiatric and legal communities have taken issue with PAS. Some deny its existence and roundly criticize the methodology which is said to support the syndrome. As a result, these naysayers have argued that PAS cannot be the basis of expert testimony in court proceedings since it simply does not exist as a proven psychological condition. Undoubtedly, the debate will continue.


PAS testimony in Illinois
Illinois cases exist where PAS testimony was given during trial court proceedings. However, Illinois’s highest court has not yet directly addressed the issue of whether or not evidence in the form of expert testimony on PAS is admissible as possessing evidentiary merit. In 2004, the Illinois Supreme Court decided In re Marriage of Bates. Bates involved a case where expert testimony on PAS had been admitted in the context of an attempt by a father to modify a custody decision. The mother’s attorney had argued that the expert’s testimony was based on nothing more than “junk science.”


In its discussion in Bates, the Supreme Court of Illinois made two observations. First, the court noted the harsh criticism of Dr. Gardner and PAS. The court further acknowledged awareness of the fact that “critics have pointed to many flaws in the [PSA] theory.” Unfortunately, the court refused to say whether or not the PAS testimony was properly admitted into evidence since the testimony was not actually a basis for the trial court’s decision. Thus, the verdict is still out on how our highest court would rule on the admissibility of PAS testimony.


Illinois child custody proceedings
If you feel that you will soon be embroiled in a custody proceeding that could be charged with emotion, you should talk to an attorney experienced in family law. Keep in mind that, as to child custody matters, the gold standard for making determinations is simply what is in the “best interest of the child.”


The “best interest of the child” standard is broad and includes what the child may want and how well the child gets along with each parent. Accordingly, it would be a serious matter if you have reason to believe that your spouse is attempting to turn your child against you. A family law attorney can advise you as to what steps he or she believes are appropriate under Illinois law.

Protecting your future in a divorce

Protecting Your Future

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Protecting your future in a divorce


Ask any Illinois resident who has been through a divorce what the process is like and you are bound to hear stories about how difficult it is. The incredibly wide range of topics to be discussed and agreements to be made can be overwhelming.


Concerns for one’s immediate situation often feel so dramatic that giving thought to protecting the future can be even harder. However, the need to stay focused on how to preserve retirement assets through a divorce is critical.


Take care to avoid the loss of your future income
Retirement accounts, pension funds and other long-term investments are common assets that are often split in modern divorces. There are some ways that this can be done but there are also some all-too-simple ways that undue penalties and taxes can be assessed on these accounts, essentially wiping away a large part of a person’s investment.


Caution is urged in these situations and the following are some ways that you can help protect yourself:

  • Always use the QDRO: The Qualified Domestic Relations Order is your best bet for ensuring that all tax entities and other important agencies or companies identify your financial transaction as a part of your divorce settlement. If you receive money from a retirement account as stated in your divorce decree but the IRS views it as an early distribution, you will see a large portion of your money paid out to taxes and other penalties. The QDRO prevents this unfortunate situation and lets you keep your money as planned.

  • Only move money when allowed : Even with the use of a QDRO and clear divisions noted in your settlement agreement, the laws allow for the distribution or transfer of retirement money only within a certain time period. Make sure that your transaction happens at the right times or, once again, you could be facing big tax and penalty bills.

  • Divide assets by percentages, never dollars : Let’s imagine for a moment that you and your spouse have a retirement account that is valued today at $100,000 and you both agree to receive $50,000 when your divorce is final. Now let us look ahead to the date that your disbursement is to take place. The market may have dropped and your retirement account is now valued at only $80,000. If your original agreement indicated that each of you were to receive 50 percent, each person would then be owed $40,000. However, since your agreement indicated each person would receive $50,000, one party may be eligible to receive that amount leaving the other person with only $30,000. Citing divisions in percentages maintains the intended equitable sharing or distribution that was originally intended, even if ultimate dollar values change.

Sometimes it is a simple matter that can make a big difference and this is truly the case in the above situations. When you work with a legal professional who has the right experience, you can be assured that your current and future assets will receive the right care and protection when navigating your way through a divorce.


Illinois couples encouraged to consider prenups


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Illinois couples encouraged to consider prenups


The number of people opting to enter into prenuptial agreements has been on the rise in recent years. There are many factors that affect this and it is clear that what had long been thought of as necessary only for the very elite can now be beneficial to everyday couples.


While the thought of a prenuptial agreement may seem at odds with planning a marriage, the reality is actually quite different. Eliminating areas for discord within a marriage may be one of the best ways to create a happy and solid union.


Situations ripe for prenups Changes in society have led to many new circumstances that make the use of prenuptial agreements very helpful indeed. Following are some of the reasons that people opt for these marital contracts:


A need to protect business assets: When one member of a couple has an interest in a business, the ability to protect the business assets and keep them separate from the marital estate can be a critical way to also protect the business itself. When partners are involved, the need to do this becomes even more important. If both members of an engaged couple are involved in the same business, it could be useful to identify an up-front delineation of involvement to avoid unnecessary problems later on. These calculations can be amended over time as the business evolves if need be.


A complement to retirement and estate planning: Especially for couples that get married at later stages of life, looking at a prenuptial agreement as a means of estate planning and protecting retirement assets is one of the wisest things that can be done. A marital contract can help to identify what will happen to select assets upon the death of one or both spouses. It can also preserve retirement funds by dictating a desired allotment of account monies.


The wish to provide for existing children : When getting married with minor children already in existence from either a prior marriage or relationship, a prenuptial agreement can help to secure a financial commitment for those children and prevent the loss of prior agreements based upon a change of circumstance.


These are just some examples of circumstances that make a prenuptial agreement far more than simply a way to protect oneself in the event of a future divorce.


Get the full story
Before embarking upon a premarital contract, it is best to discuss your needs with a family law attorney who works with these agreements on a regular basis. This will help you and your future spouse to ensure that your document is created in the best way possible so that it can provide the protection you both desire.

The Impact of Domestic Violence on Property Division in Divorce in the U.S.A.

Impact of Domestic Violence

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The Impact of Domestic Violence on Property Division in Divorce in the U.S.A.


I. Introduction

To understand the impact of domestic violence in the context of property division in the United States, one must view the concept of the “war” against domestic violence as a dynamic force, finally gaining acceptance at large, yet trying to find its place in the midst of the various “no fault” concepts that govern divorce law in each of the 50 states. The enormity of the changing American psyche on this subject is evidenced in the Public Service Announcements and ads at play on American television today, where young men of all colors search out their male elders and ask, ” Can you teach me how to change my attitudes toward women?” while the voiceover notes that violence toward women is never acceptable. Clearly, the American public has finally seen fit to address a once-hidden issue and focus on changes needed for future generations to eradicate this egregious problem.


During the last 10 years, numerous new federal and state statutes have been enacted to discourage and punish domestic violence and are evidence of the public and government sentiment that silence is no longer tolerable. At the same time as the primacy of ending domestic violence rises, it runs full force into the long embraced concept that one may divorce in America with the understanding that no one person alone is responsible for the divorce — the concept of “no fault” divorce. Given the construct in which divorce actions occur, many states direct that fault is not to be considered when dividing property. Thus, the dilemma arises: How do courts face the issue of domestic violence in the only arena available outside of the criminal justice system? One is left with the financial avenue.


This paper will examine the current state of statutory avenues directed at protection from domestic violence in America and the manner in which various state courts have meted out “justice” in the form of compensatory property division, even in the face of no-fault divorce statutes. Some of these cases make no sense whatsoever and one ponders the reasoning of the judge who promulgated the decision.


On the federal level, Congress enacted the Violence Against Women Act (” VAWA “) in 1994, 42 U.S.C. §13981 (2000), as part of the Violence Crime Control and Law Enforcement Act of1994. Congress stated its “goal” was to:

  • Treat violence against women as a major law enforcement priority;
  • Take aim at the attitudes that nurture violence against women; and
  • Provide the help that survivors need.


The Violence Against Women Act of 1991, S. Rep. No. 102-197, at 34-35 (1991).
VAWA is actually composed of numerous federal statutes to prosecute domestic violence offenders in the federal courts:


  • Subtitle A, Safe Streets for Women;
  • Subtitle B, Safe Homes for Women;
  • Subtitle C, Civil Rights for Women;
  • Subtitle D, Equal Justice for Women in Courts;
  • Subtitle E, Violence Against Women Act Improvements;
  • Subtitle F, National Stalker and Domestic Violence Reduction;
  • Subtitle G, Protection for Battered Immigrant Women and Children.


VAWA also created a civil rights remedy for gender-motivated violence, but this part of VAWA was ruled unconstitutional in United States v. Morrison, 529 U.S. 598 (2000).


Congress also enacted the Gun Control Act, which criminalizes possession of a firearm by or transfer to one who is subject to an order of protection or has been convicted of an act of domestic violence. 18 U.S.C. § 922 (2000).


The federal Full Faith and Credit to Orders of Protection Act provides that a qualifying civil or criminal domestic protection order issued by a court in one state or Indian tribe shall be accorded full faith and credit by the courts of other states or tribes, and enforced as would their own orders. 18 U.S.C. § 2265 (2000).


At the state level, the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) and the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act have sought to protect victims of domestic violence. Further, once the Supreme Court suggested in United States v. Morrison that states can regulate the type of conduct prohibited by VAWA, and can, under state law, provide civil causes of action and remedies similar to VAWA. 529 U.S. 616, state and municipal entities began to follow suit.


In 2000, New York City was the first jurisdiction to adopt a local version of VAWA, giving persons injured by domestic violence the right to sue their abusers for civil damages. N.Y. City Admin. Code §§ 8-901 to 8-907 (2001) (providing a civil cause of action for any person committing a “crime of violence motivated by gender” and authorizing compensatory and punitive damages, injunctions, and fees). California followed suit in 2002. Cal. Civ. Code § 52.4 (2002). Illinois followed thereafter in 2004. Ill. Public Law 93-0416 (effective Jan. 1, 2004). Similar legislation has been proposed in other municipalities, as well as in the states of Arizona , Arkansas , and New York . E.g., “Violence Motivated by Gender,” S.B. 1550, 45th Leg., 1st Reg. Sess. (Ariz. 2001) (providing damage actions when acts of violence are “motivated by gender,” as established by a “preponderance of the evidence,” but not if “random”); “Arkansas Violence Against Women Act of 2001,” H.B. 1691, 83d Gen. Assem., Reg. Sess. (Ark. 2001) (providing for protection of the “civil rights of victims of gender motivated violence and … promoting the public safety, health, and activities by establishing a state civil rights cause of action”); “An Act To Amend the Civil Rights Law, in Relation to Providing a Civil Remedy for Victims of Bias-Related Violence or Intimidation,” S.B. 2776, 224th Leg., Reg. Sess. (N.Y. 2001) (providing remedies for injuries based on gender and sexual orientation and authorizing civil suits to be brought by both the attorney general and individuals).


For family law practitioners, however, domestic violence continues to be most important when embedded into the issues of child custody/visitation, property division and mediation in the divorce context. This presentation will focus solely on the impact of domestic violence on property division in divorce.


II. Domestic Violence Considered in Property Division at Divorce


Domestic Violence May Be Considered in Property Division
At one end of the spectrum, in some states, the presence of domestic violence is a specifically enumerated factor in property division. In some other states, fault is generally a consideration, or fault is a consideration where such fault leads to marital breakdown or dissolution. Obviously, in these states, domestic violence is a valid consideration in property division. Brett R. Turner, The Role of Marital Misconduct in Dividing Property Upon Divorce, 15 Divorce Litig. 117, 129-139 (July 2003); Ira Mark Ellman, The Place of Fault in Modern Divorce Law, 28 Ariz. L.J. 773 (1996).


In these states, spousal abuse is a relevant factor in and of itself without specifically requiring particularly egregious abuse, and without expressly demanding a connection between the abuse and some other factor. It appears that the courts assume that the abuse was a cause of the marital breakdown. E.g., Crowe v. Crowe, 602 So. 2d 441 (Ala. Civ. App. 1992) (record clearly reflected husband’s physical abuse of wife; award of majority of marital property to wife not error); Utterback v. Utterback, 435 So.2d 105 (Ala. Civ. App. 1983) (division of marital property would be affirmed, particularly in light of evidence relating to physical abuse of former wife); Rowell v. Rowell, 406 So.2d 993 (Ala. Civ. App. 1981) (despite husband’s contention that trial court made excessive division of property and/or alimony in gross in favor of wife, trial court did not abuse its discretion, where husband’s adultery and physical abuse of wife were factors contributing to divorce); Bleuer v. Bleuer, 755 A.2d 946 (Conn. Ct. App. 2000) (husband abused wife and children; wife awarded 80 percent of assets); Crews v. Crews, 949 S.W.2d 659 (Mo. Ct. App. 1997) (wife awarded 88 percent of marital property); Dodson v. Dodson, 904 S.W.2d 3 (Mo. Ct. App. 1995) (marital misconduct, including numerous extramarital affairs and several instances of physical abuse, and other factors, supported trial court’s exercise of discretion in unequal division; testimony that husband dragged wife across floor by her hair on one occasion, put a loaded pistol in her mouth and threatened to kill her on two occasions, and locked her in a dog house on one occasion justified awarding wife the marital home); McMann v. McMann, 845 S.W.2d 159, 161 (Mo. Ct. App. 1993) (wife testified to ongoing spousal abuse of husband; wife awarded 63 percent of marital assets); Divine v. Divine, 752 S.W.2d 76 (Mo. Ct. App. 1988) (husband’s committing physical abuse, engaging in telephone harassment and making false accusations, placed undue stress on partnership and was thus factor to be considered in dividing marital property; appellate court ruled that ” [e]ven if Wife’s contribution was much lower than that of Husband, the trial court’s division of the marital assets could be supported by Wife’s testimony concerning ongoing spousal abuse of Husband”); Hogan v. Hogan, 651 S.W.2d 585 (Mo. Ct. App. 1983) (where there was evidence of husband’s misconduct relating to physical abuse of his wife, trial court did not abuse its discretion in dissolution action by awarding wife approximately 52 percent of marital property while husband was awarded about 48 percent); Reiser v. Reiser, 621 N.W.2d 348 (N.D. 2000) ( dividing estate in favor of wife despite short-term marriage where husband abused wife); Weigel v. Weigel, 604 N.W.2d 462 (N.D. 2000) (dividing home equally although husband made down payment); Viti v. Viti, 773 A.2d 893 (R.I. 2000) (60 percent to wife where husband abused wife); Thompson v. Thompson, 642 A.2d 1160 (R.I. 1994) (husband admitted to three incidents of physical abuse and trial court found that husband abused wife both physically and emotionally; wife awarded 65 percent of marital assets); West v. West, 431 S.E.2d 603 (S.C. Ct. App. 1993) (wife left husband as a result of his extreme physical and mental abuse and sought equitable distribution of property; wife awarded 40 percent of equity in marital home, in a short-term marriage, when the wife contributed little financially to the accumulation of the community estate); Faram v. Gervitz-Faram, 895 S.W.2d 839, 844 (Tex. Ct. App. 1995) ( awarding husband only 27.1 percent of assets where he had abused wife during marriage, citing husband’s “abusive and violent nature, which ultimately contributed to the divorce”).


1. Domestic Violence Relevant Only If It Precipitated Divorce
Some other courts have held that domestic violence is relevant only if was the precipitating cause for the divorce. See Shirley v. Shirley, 600 So. 2d 284 (Ala. Civ. App. 1992); Faram v. Gervitz-Faram, 895 S.W.2d 839 (Tex. App. 1995).
For example, in Mount v. Mount, 476 A.2d 1175 (Md. Ct. Spec. App. 1984), over the years, the husband beat the wife repeatedly, resulting in several hospitalizations. On one occasion, he hired two men to assault and rob her. The appellate court reversed the trial court’s equal division, holding that the facts and circumstances leading to the breakdown of the marriage, i.e., the domestic violence, were relevant and should have been considered.


On the other hand, in Tinsley v. Tinsley, 483 S.E.2d 198 (S.C. Ct. App. 1997), the wife testified:
He would lock her in the bedroom and beat her, once even breaking her nose. She introduced pictures taken in December of 1992 to show bruises allegedly inflicted by her husband. She also introduced a calendar on which she had noted the dates on which her husband slapped or beat her. On the night she left, her husband would not let her in the house and she felt threatened. When she returned the next day to get clothes for herself and the child, her husband was belligerent and ripped the windshield wiper off her car. She stayed with her husband as long as she did because she was a social worker and felt she should try to save her marriage. In August of 1993, however, she left her husband, she testified, as a result of his abuse.


483 S.E.2d at 200. Nonetheless, the trial court divided the property evenly, and the appellate court upheld the award, finding a lack of significant evidence of fault relating to domestic violence as precipitating the divorce. Some decisions are “mind boggling”. This is one such example.


2. Domestic Violence as “Economic Misconduct”
In the center of the spectrum, some states do not allow the courts to consider “marital fault,” but do allow the courts to consider “ economic fault .” In these states, courts are more than willing to find that spousal abuse constitutes economic fault because of the economic impact that spousal abuse may have, such as increased medical bills or a decreased ability to work.


In Jones v. Jones, 942 P.2d 1133 (Alaska 1997), the court stated that the concept of economic misconduct is broad enough to include social or moral misconduct, which leads to an unreasonable depletion of marital assets, such as domestic violence. Therefore, a court may take into account economic misconduct under subpart (E), but it may not consider a party’s moral or legal marital failings, which do not amount to economic misconduct. Likewise, in In re Marriage of Coomer, 622 N.E.2d 1315 (Ind. Ct. App. 1993), the court upheld an uneven property division where a husband’s physical abuse of his wife caused health problems for her that created a substantial likelihood of future medical expenses. The court noted that:


“. . . while a party’s conduct or fault in the breakup of the marriage is not a proper ground for an unequal division of marital property, a party’s conduct during the marriage ‘as related to the disposition or dissipation of their property’ is.” Id. at 1319 (citation omitted).


It concluded that the trial court did not abuse its discretion in awarding the wife more of the marital property because “a good share of her income will be devoted to her medical care” as a result of the husband’s conduct. Accord, Mosley v. Mosley, 601 A.2d 599 (D.C. 1992) (trial court did not abuse its discretion in dividing marital property in such a manner as to give husband one-third and wife two-thirds, where husband left home on at least two occasions and frequently spent nights out drinking, which ultimately led to alcoholism problem and incidents of violence toward his family).


3. Domestic Violence Considered Only If “Egregious”
Near the other end of the spectrum, some states have taken the view that domestic violence is relevant in property distribution only if the abuse was egregious. In New York, for example, spousal abuse must be “egregious” to be factored into a property distribution. See Orofino v. Orofino, 627 N.Y.S.2d 460 (N.Y. App. Div. 1995); Kellerman v. Kellerman, 590 N.Y.S.2d 570 (N.Y. App. Div. 1992); Stevens v. Stevens, 484 N.Y.S.2d 708 (N.Y. App. Div. 1985).


In Stevens v. Stevens, the plaintiff wife struck and scratched the defendant husband, pulled his hair and bit him, and wounded him with a kitchen knife while attempting to break into his locked briefcase. The court specifically noted that the plaintiff’s misconduct took place in the “waning” months of the marriage. The court held that the abusive behavior did not ” work a divestiture of the property interest . . . earned over 15 years of marriage” and would not be considered. Clearly, the court was looking for a way to avoid penalizing the abuser wife, and perhaps believed that the husband was exaggerating his experience.


In Kellerman v. Kellerman, the trial court refused, on fault grounds, to award to the defendant husband the appreciation in value of the plaintiff wife’s separate property residence. The appellate court reviewed the allegations of the plaintiff’s complaint, which consisted of 27 specific incidents of physical assault, verbal abuse and threats during the parties’ brief marriage. The appellate court overturned the trial court’s finding that this conduct was sufficiently egregious as to warrant consideration in apportioning the marital property, and remanded the case to the trial court for a determination as to the amount the plaintiff wife’s separate property had appreciated during the marriage so it would be distributed as part of the divorce case.


In Orofino v. Orofino, the trial court found the defendant husband to have “consumed extraordinary amounts of alcohol,” to have verbally abused the plaintiff wife on a biweekly basis, to have physically abused the wife (including an episode in which he threw an ashtray at her, lacerating her scalp), to have threatened to commit arson and finally, to have placed the muzzle of a rifle against the plaintiff’s head and threatened to kill her. Nevertheless, the trial court held that this behavior should not lessen the defendant’s share in the nearly $2 million invested in a joint account/stock portfolio. Instead, the defendant husband was awarded 60 percent of the portfolio based on the fact that he solely managed the assets and plaintiff’s contribution consisted of “homemaker” activities. Reviewing this case causes one to ponder the abuse this homemaker suffered at the hands of the trial judge as well as her husband.


Few New York cases have found violent conduct to be egregious, except where the ongoing course of abusive conduct has culminated in an attempted murder. For example, in Wenzel v. Wenzel, 472 N.Y.S.2d 830 (N.Y. Fam. Ct. 1984), the husband had attacked the wife with a knife, inflicting numerous serious wounds, and then left the wife for dead. There, the court found the conduct “egregious” enough to consider in property distribution. See also Havell v. Islam, N.Y.L.J., July 30, 2001, at 21 (Sup. Ct. July 30, 2001); Murtha v. Murtha, N.Y.L.J., May 15, 1998, at 29 (N.Y. Sup. Ct. May 15, 1998); Debeny v. Debeny, N.Y.L.J., Jan. 24, 1991, at 21 (N.Y. Sup. Ct. Jan. 24, 1991) (husband used the wife as his personal punching bag through years of marriage). See generally Cheryl J. Lee, Escaping the Lion’s Den and Going Back for Your Hat – Why Domestic Violence Should be Considered in the Distribution of Marital Property Upon the Dissolution of Marriage, 23 Pace L. Rev. 273 (2002) (surveying New York law). Perhaps New York’s new law providing VAWA damage claims will substitute for the limited scope of relief available under past case law.


In Michigan, the courts have stated that fault is relevant to property division only if it is outrageous or shockingly unforeseeable. McDougal v. McDougal, 545 N.W.2d 357, 362 (Mich. 1996). Kansas courts have held that fault is relevant only if its “. . . so gross and extreme that failure to penalize therefore would itself be inequitable.” In re Marriage of Sommers, 792 P.2d 1005, 1010 (Kan. 1990). See also Stover v. Stover, 696 S.W.2d 750 (Ark. 1985) (property divided unequally where wife convicted of conspiracy to murder husband); D’Arc v. D’Arc, 395 A.2d 1270 (N.J. Super. Ch. Div. 1978), aff’d in part, 421 A.2d 602 (N.J. Super. App. Div. 1980) (husband offered third person $50,000 to kill wife).


4. Exclusion of All Fault
Finally, at the extreme other end of the spectrum, fault may not be considered in the division of marital assets. The Uniform Marriage and Divorce Act requires the division of assets without regard to marital misconduct. Uniform Marriage and Divorce Act, 9A U.LA. 238 (1987).


Even in UMDA states, however, the courts allow consideration of “economic fault,” thus opening the door to consideration of domestic violence that has an economic impact (see discussion II(B) above). For example, in Mellon Bank v. Holub, 583 A.2d 1157 (Pa. Super. Ct. 1990), the court noted that 23 Pa. Cons. Stat. Ann. § 3502 prohibits consideration of fault in the division of marital assets. It was not improper, however, to award all the marital assets to the wife when the husband had solicited a third person to murder the wife, since the solicitation of the murder dissipated marital assets.


Consequences of Court Consideration of Domestic Violence
When domestic violence is weighed into the determination of an appropriate property distribution upon divorce, the most common result is that the wife (the spouse who is typically abused) is given a larger portion of the marital estate than she might have received otherwise. E.g., Crowe v. Crowe, 602 So. 2d 441 (Ala. Civ. App. 1992) (wife awarded exclusive possession of majority of marital property, both real and personal, in part because of husband’s physical abuse); In re Marriage of Coomer, 622 N.E.2d 1315 (Ind. Ct. App. 1993) ( wife awarded 60 percent of marital assets in part because her health was impaired as a consequence of the husband’s physical abuse); Dodson v. Dodson, 904 S.W.2d 3 (Mo. Ct. App. 1995) (testimony that husband dragged wife across floor by her hair on one occasion, put a loaded pistol in her mouth and threatened to kill her on two occasions, and locked her in a dog house on one occasion; court awarded wife the marital home); McMann v. McMann, 845 S.W.2d 159, 161 (Mo. Ct. App. 1993) ( wife awarded 63 percent of marital assets; appellate court ruled that ” [e]ven if Wife’s contribution was much lower than that of Husband, the trial court’s division of the marital assets could be supported by Wife’s testimony concerning ongoing spousal abuse of Husband”); Thompson v. Thompson, 642 A.2d 1160 (R.I. 1994) ( wife awarded 65 percent of marital assets in part because of husband’s physical and emotional abuse of wife); Faram v. Gervitz-Faram, 895 S.W.2d 839, 844 (Tex. App. 1995) ( 72 percent of community property awarded to wife in large part because of husband’s “abusive and violent nature, which ultimately contributed to the divorce”).


III. Conclusion

When Congress enacted VAWA, it made specific findings regarding the enormous impact domestic violence has on the health and safety of spouses. H.R. Conf. Rep. No. 103-711, p. 385 (1994), U.S.Code Cong. & Admin.News 1994, pp. 1803, 1853; S.Rep. No. 103-138, p. 40 (1993); S.Rep. No. 101-545, p. 33 (1990). Congress also found that gender-motivated violence affects interstate commerce “. . . by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved in interstate commerce; … by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products.” H.R. Conf. Rep. No. 103-711, at 385, U.S.Code Cong. & Admin.News 1994, pp. 1803, 1853. Accord, S.Rep. No. 103-138, at 54. Given the impact of domestic violence on the abused individual, there is every reason for courts to consider the economic impact of the domestic violence when dividing marital and community property, and counsel for the abused spouse should be prepared to so argue, and, when necessary, either directly in the divorce action or under the various municipal, state and federal statutes available, seek appropriate remedies. The tensions between no-fault statutes and the economic impact of domestic violence have been tested and the result is the recognition of viable avenues for victim compensation.