Liberalization of Divorce

Many people feel nostalgic for the good old days, when unhappily married people faced on an ordeal by fire to end a marriage gone south. Nostalgia is seldom the basis of a sound argument.

People are nostalgic for the old days when people who were unfaithful had their fun and paid the price might do well to recall what a fault divorce on grounds of adultery entails.

Liberalization of divorce did not make it less painful to get a divorce. Emotionally for most people divorce is a wrenching experience, one right up there with the death of a spouse or a serious illness or accident in terms of pain and suffering. However, with the liberalization of divorce also came "the attendant easing of the burden" required to assert fault or no-fault. This means the weight assigned to fault is a matter of what is called judicial discretion, and most courts place little weight on it.

No-fault does not mean that a man can squander the marital estate on his girlfriend and just get away with it. Squandering the marital estate on a girlfriend is called dissipation, and courts look with great disfavor on it. This is where judicial discretion comes in. Conduct during the marriage is a factor, particularly and most commonly when one spouse steals or misappropriates what rightfully belongs to both of them.

For reasons still being debated, the consensus about the sanctity of marriage began to dissolve in 1960s. Probably, rising levels of affluence in America elevated expectations about life happiness, and with this came support to change laws that seemed to frustrate that. Divorce reform was one of the many changes to come out of the 1960s -- a time now remembered for upheaval associated with civil rights and the Vietnam War.

The pressure to liberalize divorce laws increased in the 1960s in response to changes in the ideas of morality, economics, mobility and gender roles.

Divorce is not new. In colonial America, where society’s norms found expression and a repressive theocratic community, divorce involved grave questions of guilt and innocence. Yet at least as early as the end of the seventeenth century, divorce had become a society issue. In 1629, the Massachusetts Bay Colony created a judicial tribunal for divorce, empowered to issue divorce decrees on grounds of adultery, bigamy, desertion and impotence. Adultery was the primary justification for a divorce, complete with proof of guilt and "[h]arsh social and punishments - for the guilty party." Social changes in morality, economics, mobility and gender roles are pieces in the mosaic of the history of divorce.

It is popularly quoted that one in two marriages end in divorce, but divorce statistics can be very misleading. The divorce rate in the United States increased gradually between 1860 and the early 1960s. After World War II, it soared for a time, but there have been increases and decreases over the years.

The societal pressures to liberalize divorce, which began building in the 1960s, bore fruit , so California enacted no-fault divorce. Liberalized divorce is part of a great and profound cultural shift. Like so much of American life, even a generation later people are still arguing about it. Conservatives argue that liberalized divorce law -- which made it very possible for one spouse to divorce the other against his or her will -- undermines the very foundations of society; liberals, on the other hand, contend that the decision to stay married is private and personal. Both extremes can provide anecdotal and statistic evidence supporting their position, but most Americans are somewhere in between. Conservatives abhor these changes in American life; liberals applaud them. Few support a return to the days when no-fault did not exist.

However, it is interesting to note that within ten years of California’s no-fault (signed into law by Governor Ronald Reagan, America’s first divorced president), almost every state had some form of no-fault. This strongly suggests that divorce reform -- and liberalization -- was an idea whose time had come.



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