John Roska: Conduct usually doesn't matter in divorce ruling

Q: In a divorce, does misconduct affect how property gets divided, who gets custody, and how much child support gets paid? Does the judge take into account that someone cheated, or was abusive to their spouse or to the kids?

A: Conduct isn't supposed to affect the property division or child support amount at all. It can, however, affect who gets custody. But only if it's relevant to deciding "the best interest of the child."

Divorces are unpleasant enough, without them becoming mud-slinging battles over fault and misconduct. Illinois divorce law tries to keep a lid on mud-slinging, by de-emphasizing fault. As a result, dirty laundry usually isn't very important.

If divorcing spouses can't settle things by agreement, their case gets divided into 2 main parts: grounds, and everything else. The Illinois law puts it this way: "contested trials shall be on a bifurcated basis with the grounds being tried first." That means 2 separate court dates.

Illinois law specifies 10 possible grounds for divorce that involve fault. The only one really used is "mental cruelty." That sounds bad, and provokes strong reactions, but it's pretty benign in practice.

Illinois also has 2 "modified" no-fault grounds for divorce: you've been separated for 2 years; or for 6 months, and both sides sign a waiver of the 2 year separation requirement.

Because the grounds just get you divorced, and leave everything else to be decided separately, using mental cruelty or some other fault as grounds for your divorce doesn't give you any edge. Fighting over grounds, or using fault grounds when you could simplify things with no-fault grounds, won't win you many points with the judge.

So, whatever fault you establish to prove grounds won't affect anything else in a divorce. Everything else is completely separate.

When it comes to dividing property and setting child support or maintenance, fault is totally irrelevant. The law states clearly that judges shall make those particular decisions "without regard to marital misconduct."

The law lists 12 other factors to consider when dividing property, and 6 for setting child support. None of those factors leave much room to try to sneak in evidence about fault and misconduct.

Usually, child support is simply set using the guidelines set out in the law. For 1 child, it's 20% of the payor's net income. For 2 kids, it's 28%; for 3, 32%, and so on.

When it comes to custody, judges are supposed to make that decision "in accordance with the best interest of the child." That opens the door to evidence about misconduct, but only as it affects the children, or someone's ability to care for them. It's not a green light for mud-slinging.

So, the typical complaints about infidelity and general debauchery should never be considered when dividing up property, or when setting child support or maintenance. Anyone who tries will get shut down pretty quickly.

Misconduct might be considered when deciding child custody, but probably less often than many people expect or would like.

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PBinLosAngeles wrote on May 19, 2014 at 12:05 am

If you’re a man/father, you can bet your behind that YOUR “conduct” CAN be a factor - A woman on the other hand, the court doesn’t care if they’re sleeping all over town. As for that mythical “best interest of the child” read on…

In U.S. Divorce/Custody matters mothers are awarded Primary Physical Custody of minor children - when such children are involved - in 91% of cases. Not 75% of the time or half the time; fully over 90% of the time Mom gets the kids. In the United States, divorce and custody comprise over half of all civil litigation, constituting the cash cow of the judiciary, and bringing employment and earnings to a host of public and private officials, including counselors, lawyers, child support collection agents, mediators, psychologists, law enforcement officers, and countless others in both the public and private sectors, all in the name of helping “troubled children”. What ever pieties these practitioners may voice about the plight of these troubled children, the fact remains that these same people maintain a vested personal, professional, and often political interest in creating as many such children as possible, and removing fathers from the homes they share with their kids via court order accomplishes that goal.