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Colorado and a majority of other U.S. states does not considering marital misconduct or marital fault (other than "economic waste" or conduct relevant to parenting) in either property division or alimony awards.

Some states openly consider marital fault in property division and alimony awards and a handful of states (most notably North Carolina and Mississippi) have "heart balm" torts like "alienation of affections" that effectively allow someone to sue the "other man" or "other woman" who had an affair with their spouse for money damages. Mostly, but not entirely, martial fault or marital misconduct other than economic waste is a permissible consideration in "red states" in the Great Plains, Appalachia, and the South. Marital fault based tort awards are rare but allowed in theory in Illinois, Hawaii and New Mexico, but restrictions on proof of liability for the tort it that make it exceedingly difficult to prevail in an alienation of affections case and recover substantial monetary damages. It is also possible to bring these tort suits with a lower standard of proof lower in Utah and South Dakota, which continue to have actively litigated alienation of affections suits, although the tort is not used as often in these states as it is in North Carolina and Mississippi.

The legal culture in New York States to some extent probably implicitly considers marital fault, even though it should not since this was abolished as a consideration in property division and alimony only in 2010. Its common law derived system of equitable property division is much more discretionary than that of California.

This is because, in practice, it is quite hard to review on appeal an improper consideration of marital fault in a New York State property division or alimony award, however.

The court has broad discretion to equitably divide property and to make an alimony award, considering fact rich evidence that can reveal marital fault incidentally. And, in a fault based divorce (which still exists in New York along with no fault divorces), the evidence may have even been admitted properly and may have resulted in judicial findings of fact, for the other lawful purpose of determining valid grounds for a fault based divorce were present.

And, often a judge will not make particularly detailed findings of fact or conduct details analysis of the court's reasoning in writing or orally, beyond a bare minimum of factual detail necessary to state what the find decision of the court was in the case and to make jurisdictionally required findings of fact. Judges are busy and they often due the bare minimum of work to resolve cases in ordinary divorces that come before them to decide.

Colorado and a majority of other U.S. states do not considering marital misconduct or marital fault (other than "economic waste" or conduct relevant to parenting) in either property division or alimony awards.

Some states openly consider marital fault in property division and alimony awards. A handful of states (most notably North Carolina and Mississippi) have "heart balm" torts like "alienation of affections" that effectively allow someone to sue the "other man" or "other woman" who had an affair with their spouse for money damages. Mostly, but not entirely, martial fault or marital misconduct other than economic waste is a permissible consideration in "red states" in the Great Plains, Appalachia, and the South. Marital fault based tort awards are rare but allowed in theory in Illinois, Hawaii and New Mexico, but restrictions on proof of liability for theses torts make it exceedingly difficult to prevail in an alienation of affections case and recover substantial monetary damages. It is also possible to bring these tort suits with a lower standard of proof in Utah and South Dakota, which continue to have actively litigated alienation of affections suits, although the tort is not used as often in these states as it is in North Carolina and Mississippi.

The legal culture in New York State to some extent probably does implicitly consider marital fault, since intuitions of legal practitioners and judges don't change as quickly as the law does, even though it should not consider this since consideration of marital fault in property division and alimony was abolished as a consideration in New York State in 2010. New York State's common law derived system of equitable property division is much more discretionary than that of California, which makes it easier for fault based intuitions of legal practitioners and judges to intrude on how cases are resolved sub silentio.

This is because, in practice, it is quite hard to review on appeal an improper consideration of marital fault in a New York State property division or alimony award.

The court has broad discretion to equitably divide property and to make an alimony award, considering fact rich evidence that can reveal marital fault incidentally. And, in a fault based divorce (which still exists in New York along with no fault divorces), the evidence may have even been admitted properly and may have resulted in judicial findings of fact, for the other lawful purpose of determining valid grounds for a fault based divorce were present.

Also, often a judge will not make particularly detailed findings of fact or conduct details analysis of the court's reasoning in writing or orally, beyond a bare minimum of factual detail necessary to state what the find decision of the court was in the case and to make jurisdictionally required findings of fact. Judges are busy and they often due the bare minimum of work to resolve cases in ordinary divorces that come before them to decide.

In other U.S. states and in the District of Columbia, both fault based and no fault based divorces are available, although no fault divorces are more common than fault based divorces in every U.S. states and in the District of Columbia.

In other U.S. states and in the District of Columbia, both fault based and no fault based divorces are available, although no fault divorces are more common than fault based divorces in every U.S. state and in the District of Columbia.

Appellate Review oF Marital Fault Consideration Is Difficult To Perfect

One reason that pre-no fault practice can have enduring influence on post-fault decision making by judges in New York (most of whom practiced law for most of their careers pre-2010 when property division and alimony awards in New York considered fault), is that there are few effective means of overturning on appeal a decision that covertly considers these factors.

This is because, in practice, it is quite hard to review on appeal an improper consideration of marital fault in a New York State property division or alimony award, however.

The court has broad discretion to equitably divide property and to make an alimony award, considering fact rich evidence that can reveal marital fault incidentally. And, in a fault based divorce (which still exists in New York along with no fault divorces), the evidence may have even been admitted properly and may have resulted in judicial findings of fact, for the other lawful purpose of determining valid grounds for a fault based divorce were present.

Also, divorce decrees are entered by judges, and for appellate purposes, unless a judge expressly states in an oral or written ruling that an impermissible factor was considered, a judge is presumed to have ignored legally irrelevant evidence presented to the judge in a hearing or pleadings, even if evidence of marital fault is improperly admitted into evidence over the other party's objection, or is admitted into evidence without a preserved evidentiary objection.

And, often a judge will not make particularly detailed findings of fact or conduct details analysis of the court's reasoning in writing or orally, beyond a bare minimum of factual detail necessary to state what the find decision of the court was in the case and to make jurisdictionally required findings of fact. Judges are busy and they often due the bare minimum of work to resolve cases in ordinary divorces that come before them to decide.

So, usually, the fact that marital fault evidence was presented at a permanent orders hearing in a divorce will not provide a basis for reversing a decision on appeal, even though it is plausible under the circumstances that the judge's decision on property division or alimony was influenced by marital fault.