The Impact of Domestic
Violence on Property Division in Divorce in the U.S.A.
By Joy M. Feinberg 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 which 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 towards women?"
while the voiceover notes that violence towards 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. Morrision, 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% of assets); Crews v. Crews, 949 S.W.2d 659 (Mo. Ct. App. 1997)
(wife awarded 88% 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% 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% of marital property while
husband was awarded about 48%); 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% 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% of marital assets); West
v. West, 431 S.E.2d 603 (S.C. Ct. App. 1993) (wife left husband as result of his
extreme physical and mental abuse and sought equitable distribution of property; wife
awarded 40% 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% 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 twenty-seven 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 threaten to kill her. Nevertheless, the trial court held that this
behavior should not lessen the defendant's share in the nearly two million dollars
invested in a joint account/stock portfolio. Instead, the defendant husband was awarded
sixty 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 inquitable." 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% 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% 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% 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% 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
aciton 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. |
