COMMENTARY: Fault in a no-fault divorce state


By Brett R. Schlender

When a marriage fails, fingers point. Conceptually, the ideas of divorce and blameworthy conduct go hand in hand. Michigan's label as a "no-fault" divorce state tends to obscure the role marital fault might play in a contested divorce.

The phrase originates from consent. People marry on mutual consent, so one becomes eligible for a divorce when the shared willingness to remain married is lost. A spouse must allege in the complaint, and reaffirm at the proceeding's conclusion, his or her belief that the marriage is broken and there is no reasonable chance of reconciliation. Proof of external facts, such as the other party's fault, is not necessary to obtain a divorce. Hence the phrase "no-fault divorce."

Allegations of marital fault-substance abuse, infidelity, and gambling, to name a few-are not uncommon in a divorce. Michigan courts weigh a series of factors in deciding claims such as spousal support and property division. Fault is a factor considered in both. To understand fault's role, background on the marital estate and equitable division is helpful. In short, the assets and liabilities either party acquired by reason of the marriage are heaped together and then divided. Though, ultimately, the net value each party's share of the estate is roughly equal, fault can move the needle from a proportionate to disproportionate divide.

But not all proof of wrongdoing will influence the outcome. Even the most insufferable people, without proper evidence of fault, are entitled to an equitable share of the estate. Mere rude or hurtful behaviors will not suffice. The Michigan Supreme Court has warned: ". . . fault is an element in the search for an equitable division-it is not a punitive basis for an inequitable division."

Generally, fault becomes material when one party wrongfully and single-handedly diminished the value or extent of marital property. Proving acts of "unilateral waste" is often no small task. A party must prove causation-a fact-based sequence of cause and effect-between the acts and a tangible loss. This often requires authentic records and competent testimony about events from long ago. Or, proving the point may require projection: If not for the wrongful conduct, what would the asset be worth today?

Missing the mark on claims of fault will often carry consequences. Misevaluating the strength of a unilateral waste claim can magnify the degree of conflict and minimize a party's return on litigation costs. Advancing unreasonable fault-based arguments is a surefire way to squander goodwill, since most judges do not care to litigate the quality of a party's performance as a spouse. Best practice requires due caution from the outset.

Rarely do attorneys develop persuasive unilateral waste arguments from the courthouse steps. Proving this point requires advance planning and know-how. If you believe you might be eligible for a disproportionate share of marital property on account of your spouse's wrongful conduct, early consultation is key. Executing a well-conceived plan of proof might transform your property award from equal to equitable.


Foster Swift attorney Brett R. Schlender specializes in divorce, custody, child support, spousal support, and other disputes personal in nature. Reprinted with permission from Foster Swift's Family Law Advocate blog at

Published: Fri, Sep 06, 2019