Most potential clients I meet have used alcohol or narcotics (be it marijuana, opiates or other painkillers, cocaine, or any other controlled dangerous substance) in various quantities and frequencies over their adult lives.

What they may not have considered is at some point, their alcohol and/or substance use could have an adverse effect on their divorce case. So where should they draw the line?

The answer is, of course, it depends.

Generally speaking, issues of substance use or misuse could adversely impact two main areas of the case: (1) custodial fitness (if there are minor children); and (2) the Court’s findings regarding the cause of the estrangement of the marriage (which can impact both the alimony and property determinations).

1. At What Point Does Substance Use Affect Custodial Fitness?

Let’s start with the obvious – when substance use impairs one’s parenting, or renders them unavailable to care for the children, there is a problem for which professional assistance should be sought. Examples of this include:

• Unable to consistently get the children fed, dressed, and to school on time in the mornings due to hangovers;
• Passing out during your custodial time with your children, leaving the children unattended; or
• A DUI while the children are passengers in the vehicle.

Perhaps less obvious is how regular, but not abusive use of substances could adversely impact the court’s assessment of your custodial fitness. What do I mean by that? Here are a few examples that may seem innocuous, but underscore the fickle and subjective nature of assessments of custodial fitness:

• Going out every evening after work for a couple drinks (i.e. arriving home near or after the children’s bedtime(s)), rather than clocking out and going home to spend time with your family and children;
• Being unable to curb your use of substances while in the presence of minor children, even if asleep (this is particularly true for narcotics; responsible alcohol use around children is usually tolerated);
• Indulging infrequently in harder narcotics such as cocaine or opiates, inside or outside of the children’s presence.

What do all of these things have in common? They’re certainly not as egregious as the first three examples. Nonetheless, they could still be viewed by the Court as evidence of poor character, self-control, or judgment concerning the children’s best interests, even if your spouse tolerated or condoned such activities for some portion of the marriage.

The lesson drawn from these examples? The Court’s standard for what constitutes a fit parent is likely higher than most anticipate. So, if you’re contemplating a divorce, it would be best for you to cease or severely cut back (and seek professional help, if needed) on any alcohol or narcotics use that occurs in the children’s presence, or takes you away from time with your children, not just during the divorce process, but in the months or years leading up to it. If time with your children is critical to you, this is a sacrifice worth making.

2. Consequences Could Stem From the Court Finding That Your Substance Use Caused the Breakdown of the Marriage

Any of the above examples, taken together with other facts, could be used to argue that your alcohol or substance use caused the breakdown of the marriage.

The use need not be abusive or addictive in nature to be seen as causing the breakdown of the marriage. It need only occur in ways that distance you from your spouse and family. That most often occurs when one spouse favors use of alcohol or narcotics more than the other. Your spouse previously tolerating your behavior, alone, is not a complete defense to the allegation that your conduct precipitated the demise of the marriage.

None of this is to say that both spouses indulging too frequently in alcohol or narcotics could not be seen as causing the breakdown of the marriage. But in the latter instance, both parties are at fault. So the blame falls more or less evenly, causing little in the way of adverse repercussions.

If your alcohol or narcotics use is seen to be the cause of the estrangement, the Court can use that finding to augment the distribution of property, or the duration or amount of alimony, in your spouse’s favor. You don’t want to invite that kind of litigation exposure during your divorce.

Abstention both during and in advance of your separation and divorce can create distance between your troubled actions and the Court’s judgment of you.

For more information, contact Erik at 301-657-0725 or [email protected].