§32.05 Misconduct

• Jurisdiction: Washington

§ 32.05 MISCONDUCT

The legislature removed fault from the statute in 1973. The previous version of the statute instructed the courts to consider the relative merits of the parties. See RCW 26.08.110 (repealed 1973). The current version specifically superseded that consideration with the phase "without regard to misconduct." RCW 26.09.080. This phrase is part of both the property disposition provision, id., and the maintenance provision, RCW 26.09.090.

Misconduct refers to immoral or abusive conduct, which the court may not consider. It does not include dissipation of assets, which the court may consider.

"[T]he 'marital misconduct' which a court may not consider under RCW 26.09.080 refers to immoral or physically abusive conduct within the marital relationship and does not encompass gross fiscal improvidence, the squandering of marital assets or, as here, the deliberate and unnecessary incurring of tax liabilities." In re Marriage of Steadman, 63 Wn. App. 523, 528, 821 P.2d 59 (1991).

Comment: Is economic misconduct the same as moral misconduct? The previous edition of this chapter referred to "economic misconduct" to distinguish it from the kind of moral misconduct that the legislature barred the courts from considering. According to the prior author, "economic misconduct" includes dissipation of assets, concealment of assets, and fraudulent conveyance. 2 WASHINGTON FAMILY LAW DESKBOOK § 32.3(6) (Wash. State Bar Assoc. 2d ed. 2006 & Cum. Supp. 2012). This seems like a useful term to distinguish between what misconduct the court will consider and what misconduct it will not. Unfortunately, the published case law has not yet picked up on the term.

"The 'underlying purpose of the . . . Dissolution of Marriage Act was to replace the concept of "fault" and substitute marriage failure or "irretrievable breakdown" as the basis for a decree dissolving a marriage.' " In re Marriage of Clark, 13 Wn. App. 805, 808, 538 P.2d 145 (1975). However, the fact that "fault" is no longer a relevant query does not preclude consideration of all factors relevant to the attainment of a just and equitable distribution of marital property.

The appellate courts have concluded that the trial court has impermissibly based its division of assets on the basis of fault at least twice since passage of the Dissolution of Marriage Act. These cases are worth discussing at some length, not only because they illustrate what "fault" means, but also because they demonstrate both good...