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Home Blog For the Good of the Order: All is Fair in Love, But What About Divorce?
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IMG_8618By Leslee Champion

Marcia Milliman may have stated it best when she said, “when love has vanished, there’s only money left to divide.” As nearly half of the marriages in the United States end in divorce, Courts are regularly faced with question of how to divide the martial property. Most states, including Georgia, provide for an equal distribution in dividing between the spouses any property acquired during their marriage through the labor of either party. Courts equally agree that property a spouse owned before the marriage began or acquired during the marriage through inheritance should remain with that spouse. It would seem these rules follow some idea of fairness in the marital relationship and according to the study, “Citizens’ Views About Fault in Property Division” by Sanford Braver and Ira Ellman, it appears most Americans generally agree with an equal split of property between the spouses. In fact, most respondents showed strong support for dividing property equally without regard to the spouses’ earnings, their relative contributions to the domestic labors, or their marital status.

But would the respondent’s division of the property change if marital misconduct was the reason behind the divorce? In their recent study, Bravers and Ellman asked the question of what effect adultery has on the public’s view of how marital property should be distributed. The participants in the study, over 600 citizens awaiting jury service in Arizona, were given 14 fact scenarios in which one of the spouses either admitted to or was accused of committing adultery. The participants were then asked to divide the couple’s property fairly. Interestingly, the study revealed that lay citizens generally support the leading American rule excluding fault from consideration in the allocation of property in divorces, even in cases where one spouse has been unfaithful. Even more surprising considering the long standing double standard between sexes, the respondents did not especially distinguish between adulterous wives and adulterous husbands. In fact, in the only scenario to receive any support for unequal distribution, the case in which one spouse admits adultery and offers no excuse of justification, men were found to have awarded less property than female respondents to the husband who admitted to cheating. The reasoning for not considering fault may be explained in the attitude questionnaire participants were required to complete. On average, respondents agreed that “marital relationships are too complicated for judges to figure out”, “courts would end up spending too much time and money”, and “divorcing spouses would often end up spending too much money for lawyers and other costs required to make such claims or to defend against them.” Bravers and Ellman suggests the reason behind these views might not be that individuals do not care about or condemn bad marital conduct, but because they appreciate limits in the law’s ability to deal with it.

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