Disproportionately Weighing Extramarital Affair in Property Division

In Berger v. Berger, a Defendant-father appealed from a judgment of divorce to the Michigan Court of Appeals following a Trial Court ruling that the Plaintiff-mother was to receive custody of the parties two children as well as a 70/30 division of marital property. While the Court of Appeals agreed with the Trial Court’s weighing of the best interest factors in favor of the mother receiving custody, it reversed the Trial Court's 70/30 division of property. Upon review of the Trial Court’s findings, the Court of Appeals stated that it appeared the Trial Court’s motives in diverging from the normal equitable division of property were based on the desire to “punish the Defendant for his affair with Johnson (the nanny), which the court found particularly egregious.” While the Trial Court was within its discretion to consider and weigh the factor of the extramarital affair by Defendant, the Court of Appeals pointed out that it was clear the lower court gave this factor disproportionate weight and the division of property was in fact, biased and inequitable.

One might wonder how the holding in this case matches up with that of the decision recently in Jackson v. Jackson, (read blog entry) where the Court of Appeals affirmed a 97/3 division of marital property based on fault by the Defendant in the marriage. While seemingly similar factually, the Berger case can be contrasted with Jackson because here the Defendant’s conduct (an extramarital affair) while egregious, is certainly not on par with the Defendant’s efforts in Jackson to poison her husband in order to be with another man and take her husband’s money. There, the Court said that the behavior was so egregious it was appropriate to weigh it heavily, in Berger, the Court specifically stated that while the affair by Defendant should be a factor, it should not have been weighed as heavily as the Trial Court did.