As the world now knows, Arnold Schwarzenegger fathered an illegitimate child, what many news outlets have referred to as a “love child,” with a member of his household staff over ten years ago. Now Mr. Schwarzenegger has reportedly hired an attorney to prepare for the inevitable divorce proceedings with his wife, Maria Shriver.
Should Arnold’s extramarital affair affect his divorce proceedings? Should Maria be awarded a greater amount of spousal support or a greater share of the marital property to compensate her for Arnold’s impropriety?
These questions are not limited to Arnold and Maria. Arnold is the not the first, nor the last spouse to have an extramarital affair or presumably be the cause of the end of a marriage. Many of our clients who feel that their spouse is to blame for the end of their marriage ask our office the same question. In Ohio, the answer can be quite unsatisfying to many people.
While it is not an abuse of discretion for marital misconduct, like adultery, to be considered by the Court when making an award of property or spousal support (alimony), meaning an Appeals Court wouldn’t make the Trial Court “redo” the divorce proceedings, it is not required and uncommon, with two exceptions. Evidence regarding marital misconduct will be heard if it is needed to prove that there are grounds for the divorce or to show that there is financial misconduct.
In order to be granted a divorce, a party must be able to show grounds, or a legal reason, for the divorce. While there are numerous “fault” grounds for divorce like adultery, extreme cruelty, gross neglect of duty and habitual drunkenness, there are also “non-fault” grounds available like incompatibility and living separate and apart without cohabitation for one year. If the parties agree to “non-fault” grounds, then the Court generally will not entertain evidence to prove “fault” grounds. So, for example, if the parties agree that they are incompatible, then the Court is not generally going to allow evidence to prove that the Husband was having an extra-marital affair. Hence, many parties are able to avoid having their dirty laundry aired in Court by stipulating to a “non-fault” basis for divorce like incompatibility.
Ohio statutory law does explicitly permit the Court to make a greater award of marital property to one spouse upon a finding that the other spouse has engaged in financial misconduct, including the dissipation of assets. Courts have used this law to “reimburse” one spouse, so to speak, for the money the other spouse spent on a girlfriend or boyfriend on the side, drugs, gambling, etc.
So to summarize: Ohio Courts can consider martial misconduct, like adultery, when dividing marital property in a divorce or awarding spousal support (alimony), however generally they will not. An Ohio Court will hear evidence to support grounds for a divorce like adultery, extreme cruelty, gross neglect of duty, or habitual drunkenness, but if the parties agree that they are incompatible or have been separated for over a year, this is avoided. If a spouse spent marital funds on an extra-marital affair, drugs, gambling or the like, the Court may “reimburse” the other spouse for their loss by awarding her a greater amount of the marital property.
Does Ohio have it right? Should an extra-marital affair, a gambling or alcohol problem or other troubling behavior affect the division of marital assets in a divorce? What do you think?