A.R.S. Sec. 25-318 A provides that the divorce judge is to divide the marital assets “equitably, . . . without regard to marital misconduct.” A common example is the case of the unfaithful spouse. A client comes in to the office and reports that she has just discovered that her husband has been having an affair. She wants a divorce. Is she entitled to be awarded most or all of the marital assets because her husband committed adultery? Answer: NO. The marital assets are still divided equitably, which usually means substantially equally.
There are occasionally exceptions to this, such as when one spouse intentionally wastes assets just prior to the divorce filing. A colleague once told me of a client of hers who, on the weekend before the divorce filing, took a trip to Las Vegas with her friends and blew through some $10,000 of the parties’ joint funds. In this case, the court would likely count the $10,000 spent in Vegas as part of the assets the spender receives in the divorce. The spender would therefore be awarded 50% of the joint funds which existed before the spending spree, and the $10,000 she spent would be included as part of her 50% share. She would NOT be awarded 50% of the joint funds remaining after the spending spree.
Some misconduct may be relevant to the court’s child custody and parenting time decisions. An extramarital affair usually would not be a factor, but drug use probably would be. If the drug-using spouse wasted significant marital funds to support his drug habit, the “waste” of those funds could also be considered in the division of the assets.
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