Most states now hold that marital misconduct, such as adultery, should not be considered in making an equitable distribution of property. A minority of states, however, have a statute that permits consideration of marital fault; courts in a few jurisdiction have ruled that the absence of a statutory prohibition means that marital fault may be considered.

Yet even in those jurisdictions that consider marital misconduct as a factor, appeals courts have limited the use of the fault factor and the weight it may carry.

Generally, therefore, courts seem to be moving in the direction that marital fault should be considered "if and only if it has negative financial consequences." In the context of divorce, economic misconduct often means dissipation of assets, which includes the wasting of marital assets through extravagant spending, gambling or excessive borrowing or fraudulent conveyance of a third party; marital misconduct includes behavior giving grounds for a traditional fault divorce.

When misconduct has economic consequences, courts consider that misconduct "to the extent it dissipates assets or other affects the parties’ economic circumstances."

When fault is considered at all, jurisdictions vary in the weight assigned to marital misbehavior in property distribution. Some consider the burden it placed on the other spouse; some consider when it the marriage the behavior happened; some consider the role of the behavior in the marital failure.

"Acting out" -- which is irrational behavior by estranged marriage partners -- is not considered in the equitable distribution of property except if it becomes seriously criminal, such as assault or murder. Murder or attempted murder by one spouse of the other -- "egregious and shocking misconduct," as it is termed in New York -- has resulted in completely one-sided distributions of the marital estate in at least one jurisdiction.

See Martial Fault.

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