23 Pages Posted: 22 Sep 2013
Date Written: September 20, 2013
While most American states today exclude or severely limit consideration of marital misconduct in allocating property at divorce, about 15 still allow judges broad discretion to consider it. This study asks whether there is popular support for considering fault in property allocations. We surveyed a representative cross-section of over 600 citizens awaiting jury service, asking for two types of judgments. One type asked respondents how they would allocate marital property in each of two hypothetical cases: a baseline case for which we knew, from prior research, respondents would favor equal division, and a second case that was identical but for claims by one spouse of the other’s adultery. There were 14 variations of the adultery case, differing in selected factual details; each respondent was asked about just one randomly selected variation. The second type of judgment asked respondents to indicate the strength of their agreement or disagreement with each of a series of statements presenting reasons for courts to consider, or not consider, allegations of marital misconduct in allocating property. Only when the adultery was admitted with no excuse or justification offered for the behavior was there any notable departure from equal division of the property, and 65% of respondents preferred equal division even in that case. Analysis of the Likert items suggests respondents’ reluctance to consider fault is based more on process concerns than on a moral indifference to adultery.
Keywords: marital property, marital misconduct
Suggested Citation: Suggested Citation
Braver, Sanford L. and Ellman, Ira Mark, Citizens’ Views About Fault in Property Division (September 20, 2013). Available at SSRN: https://ssrn.com/abstract=2328982 or http://dx.doi.org/10.2139/ssrn.2328982