By Joy M. Feinberg, Partner, Boyle Feinberg Sharma (BFS)
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 that 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 toward women?” while the voiceover notes that violence toward 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. Morrison, 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 percent of assets); Crews v. Crews, 949 S.W.2d 659 (Mo. Ct. App. 1997) (wife awarded 88 percent 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 percent 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 percent of marital property while husband was awarded about 48 percent); 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 percent 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 percent of marital assets); West v. West, 431 S.E.2d 603 (S.C. Ct. App. 1993) (wife left husband as a result of his extreme physical and mental abuse and sought equitable distribution of property; wife awarded 40 percent 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 percent 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 27 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 threatened to kill her. Nevertheless, the trial court held that this behavior should not lessen the defendant’s share in the nearly $2 million invested in a joint account/stock portfolio. Instead, the defendant husband was awarded 60 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 inequitable.” 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 percent 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 percent 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 percent 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 percent of community property awarded to wife in large part because of husband’s “abusive and violent nature, which ultimately contributed to the divorce”).
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 action 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.