Gross Midconduct in a Divorce

by Michael Butler

Gross misconduct is a legal term that courts can apply in a divorce under a few different circumstances. In some states, gross misconduct can be the reason to grant a divorce. Sometimes, courts use gross misconduct as a factor in determining how to divide marital property and how much spousal support one party should pay.

Definition

Gross misconduct does not have a specific legal definition. It depends on the area of law and any definitions used in the state. "Misconduct" is generally improper behavior or a dereliction of a duty. "Gross Misconduct" is misconduct that is outrageous or shocking. Gross misconduct is customarily a legal conclusion based on specific facts. In a divorce, it means that, given a set of facts, the judge makes a legal finding that one party's behavior was gross misconduct. This is called a "mixed question of fact and law," a concept that can sometimes be difficult to understand. For this reason, if you believe there has been gross misconduct in your marriage, you should consult with an attorney.

Factors

States that use misconduct in a divorce usually have a statute that sets out what is considered misconduct. To find gross misconduct, a judge first has to decide there was misconduct and it was outrageous in the particular case. For example, adultery is often considered misconduct and a judge might decide that bringing a sexually transmitted disease into a marriage, because of adultery, is outrageous enough to be considered gross misconduct. Other common grounds of misconduct include abandonment, abuse, drug addiction and imprisonment.

Grounds for Divorce

In states that allow divorce on fault grounds, a court grants a divorce if it finds that one of the parties engaged in misconduct. That party is considered to be at fault and the other spouse is granted a divorce. To get a divorce, there usually only needs to be misconduct, not necessarily gross misconduct. Not all states allow divorce on the basis of fault. In these states, the only reason for divorce is that one or both parties believe there are irreconcilable differences between the couple. This is called no-fault divorce.

Property and Spousal Support

Courts divide marital property equitably. Under most circumstances, this means that courts grant each party a roughly equal share of the property. However, if one of the parties has engaged in gross misconduct, the court may find that equity requires one of the parties to receive a lesser share of the property. For example, if the husband has squandered financial assets, the court may award more of the remaining assets to the blameless wife. Courts often do this under the general legal principle that people should not profit from their own misbehavior. Courts often use gross misconduct in a similar way to determine the amount of spousal support one spouse should be granted. For example, if the adulterous husband would otherwise be entitled to alimony, the court might lower the amount if the adultery was gross misconduct.