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"Bad" Spouses Are Rarely Punished. Getting On With Your Life Is The Prize in Most Divorces

Cynthia M. Fox

"I'm going to clean his clock!" That's "Susan" and she is relishing the prospect of "getting even" with her philandering husband.

As her attorney, I have the often thankless task of helping Susan adjust her expectations. Like many clients, she is convinced that once a judge hears of her husband's illicit affair and how he spent untold sums of their money on that relationship, the judge will award her the bulk of their assets as compensation for her pain and suffering. And, like most clients, Susan is probably going to be disappointed.

Family Court judges don't view their role as Susan does. Their job is neither to right the wrongs of the marriage being concluded, nor to declare "winners" and "losers". Rather, judges see their responsibility as giving people what they want most-a divorce and the chance to get on with their lives. It's their task to divvy up the property, insure that the best interests of any children are met, and to assess if spousal support is appropriate.

Even so, Susan's anger was entirely understandable. Her husband's fling left her heart-broken and betrayed. Worst of all, he was claiming that she was to blame! According to him, she wasn't always "available" to him because she was "moody", too tired, or had too much to drink.

The husband's counterclaims illustrate one of the obstacles facing someone trying to achieve financial vindication through the court. The contesting parties rarely admit to their own shortcomings and often make exaggerated claims about their spouse's. It is the classic "he said/she said" that judges hear all the time, and are reluctant to rely on to punish one spouse or reward the other.

Overcoming these obstacles can be expensive, time-consuming and emotionally exhausting. To gain any sort of meaningful "compensation" by the court, the wronged spouse has to prove with evidence that the bad behavior was predominantly the work of one spouse and that the alleged misconduct is so egregious that it rises above the typical misbehavior that occurs in a marriage that's failing.

Family Court judges spend much of their day hearing the awful things warring spouses say and do to each other. They become jaded and are reluctant to penalize one spouse for their misconduct, even when it's admitted, be it infidelity, excessive gambling, substance abuse, or even abusive behavior, unless it is to the extreme of what they hear day in and day out.

In the end, judges usually focus on equitably resolving the issues that the couple can't agree upon. Typically, this means dividing the marital assets and debts 50-50, with exceptions for debts run up primarily by one party and for separate property deposited in the marital "pot". Similarly, the judge determines if either spouse is entitled to support from the other, based on the needs of each spouse, their ability to support themselves and the length of the marriage. As to any children, their best interests will be paramount when determining support and custody, although in cases where one parent has clearly been abusive to the other, or has a substance problem, this could affect that spouse's access to the children.

As for "Susan", her anger settled down and she began looking forward to a fresh start. She and her husband agreed on a settlement that met her needs. In exchange for her husband taking full responsibility for the infidelity, she accepted a 53% allocation of the marital estate, an equal share of her husband's retirement assets, and three years of monthly spousal support. With their children grown and gone, there were no other issues to resolve.

For over 25 years Cynthia M. Fox has focused her practice in family law, with a particular emphasis on matters relating to the dissolution of marriage: divorce representation and mediation, child custody and child support. She is a native St. Louis and a graduate of the Washington University School of Law, Class of '73.

Cynthia M. Fox can be contacted by phone at (314)727-4880 or
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