While never the most uplifting of topics, divorce is now part of the fabric of society. As with so many other aspects of life, significant changes have transformed the field of divorce law. Perhaps none of those changes is as significant as the evolution of divorce from a fault-based system in which one party must be blameworthy, and guilty of something, to an alternative no-fault system in which one party might simply allege that the couple has irreconcilable differences. In most states, the two systems operate in tandem. While proponents of these two competing systems may agree on little, most would agree that the no-fault system reduces acrimony and anxiety, which are significant benefits in what is already a highly charged emotional situation.
The Bad Old Days…
Prior to 1970, most states had a system which required a showing of fault by one spouse. One spouse had to be guilty of a serious breach of the marital bond, typically adultery, cruelty, abandonment, or neglect. The charges would have to be alleged and proven in open court. Such allegations usually resulted in the very public airing of very intimate and often unflattering details. Inflicting public humiliation and shaming was part of the game.
…Led to Ill-Will
Animosity and rancor often grew as the case progressed, resulting in increasingly vindictive and irrational parties. At-fault certainly was a boon for private investigators and publicity-seeking attorneys. Whether the estranged spouses actually benefited from such a system is more difficult to say. Proponents of the no-fault system argue that the fault system was akin to pouring gasoline on a smoldering fire, inflaming the rhetoric and passions.
The Modern System of No-Fault Divorce
All fifty American states have now adopted some variation of the no-fault system. Because marriage and family law is generally governed by the state, as opposed to federal law, the evolution has taken place unevenly over decades. California adopted the first comprehensive no-fault legislation in 1970, and New York was the last to do so in 2010. Nearly every state today operates a tandem system of the fault and no-fault, allowing for fault under specific circumstances while permitting a no-fault option for those cases in which the faults either do not exist or the spouses agree not to assert them. Whether fault or no-fault, divorce is a realm for which you should find a lawyer.
Big-Picture Arguments Against No-Fault
From a religious perspective, the no-fault system undermines the sacredness and ostensible permanence of marital vows and, arguably, the institution of marriage itself. Second, that as a no-fault system makes divorce easier, it will encourage more divorces. No-fault opponents will cite the surge in divorces as proof. Third, no-fault divorce results in disproportionate economic hardship to women and children. Fourth, easy divorce leads to an ever-growing population of children deeply wounded by the experience. It is a well-established fact that divorce has profound, long-lasting effects on children.
Small-Picture Arguments Against No-Fault
First, no-fault systems allow for unilateral divorce. The wishes and desires of the non-petitioning spouse are considered irrelevant. Second, a no-fault system often denies one spouse the opportunity to explain to a neutral party the facts and circumstances that led to dissolution. This public explanation often is of great psychological benefit to that spouse. Third, it is argued that the no-fault system denies due process to the non-petitioning spouse.
The No-Fault System is More Just
There are powerful reasons favoring a no-fault system. First, the no-fault system is forward-looking, focusing attention upon the issues of the children, finances, and property settlement. In contrast, the fault system is backward-looking, focusing upon a past that cannot be altered. Second, by restricting divorce grounds to a shortlist of behaviors (adultery, cruelty, or abandonment), the fault system serves to encourage the party seeking dissolution to manufacture false evidence.
These allegations are particularly harmful and humiliating, as they are usually revealed in a courtroom hearing open to the public. Often, the initial harm done by the allegations is never remedied, even where the allegations are later proven false, and the truth never catches up with the lie. Lastly, the no-fault system may reduce the short-term psychological stresses on the spouses and the children.
The No-Fault System Benefits the Parties
First, it sets a less adversarial tone from the very beginning. The fact that no allegation or proof of blame is required will dampen emotions and allow the process to play out in a more rational, business-like manner. This is true even where one spouse is rightfully blameworthy, a fact which might lead the proceedings to be unnecessarily acrimonious. While the acrimony might serve the vengeful interests of the aggrieved spouse, it is difficult to identify legitimate, long-term interests these tactics might serve.
Second, a no-fault system tends to reduce legal fees, as reduced hostility should mean less lawyer and court time. Protracted litigation is emotionally and financially draining and is typically in the best interests of only the lawyers. Finally, eliminating the blame game may avoid poisoning the future co-parenting relationship, a relationship that will affect the children.
Might a Spouse Seek a Divorce on Fault Grounds?
State law must first be examined to determine whether fault grounds exist in the relevant jurisdiction. For example, in Utah, the following may be grounds for fault: impotency, substance abuse, abandonment, a felony conviction, cruelty, neglect, and adultery. There may be rare circumstances in which a fault divorce is sought when the no-fault option exists.
For example, some states may consider proven bad behavior in later decisions regarding the division of marital assets, support payments, and possibly custodial rights. It must be considered that instituting a fault proceeding will probably be more acrimonious, more time-consuming, and more expensive than no-fault, so carefully weigh the costs against the potential benefits.
That all fifty American states now have in place some form of no-fault divorce law indicates that, for better or worse, a consensus has been reached. To the extent that these policies reduce hostilities, they should be encouraged. But, to the extent that they undermine the institution of marriage and disproportionately result in diminished economic circumstances for mother and children, courts and legislatures should seek more enlightened solutions.