Pro Se Divorce Popularity

The increasing popularity of pro se divorce probably reflects society’s changing perception of marriage and divorce.

Beginning in the 1960s, many judges and lawyers argued that the law should provide a straight forward procedure for ending the marriages of people who could not get along. In 1970, the impulse for reform bore fruit with California’s No-Fault Divorce Law, which had been signed in September 1969 by Governor Ronald Reagan. No-fault changed divorce from a public adversarial system pitting victims against victimizers to a private routine where divorce is a decision ("life choice") between unhappily married partners.

Prior to no-fault, fault divorce, then the only grounds to end a failed marriage, made these proceedings a theater of collusion and fraud and perjury. Under the fault system, the suing partner had to prove the fault of the other and present himself or herself as blameless.

Liberalized divorce, as no-fault is called, seemed an idea whose time had come. California’s liberal no-fault divorce law took effect in 1970. Within five years, 44 states had enacted some form of no-fault, and in 1985, South Dakota became the last state in America to do so.

In enacting no-fault, most states did not completely break from fault divorce, and continued to mandate a waiting period before divorce could be granted. And some left fault grounds in place. Today, however, all but a few states have simplified procedures and mandatory forms that lend themselves to pro se filing, and only four make no provision for summary divorce.

Today, every state in the nation permits at least one of two no-fault mechanisms to end a marriage.

They are:

  1. "irreconcilable differences" or "irretrievable breakdown," and/or
  2. after a legal separation and the passage of a period of time.

Just as no-fault makes many divorces less difficult legally, pro se filing makes them less expensive financially.

Some Common Questions
Q. What does low-cost, pro se divorce mean about the institution of marriage in American life?

A. "Marriage in our culture is risky business, and the costs of marital failure are staggering," writes Howard J. Markham, Scott M. Stanley and Susan L. Blumberg, the authors of Fighting for Your Marriage. Most people marry and those who do desire a happy, lifetime marriage; few who do divorce do so impulsively. "...[W]ith fewer economic, legal and moral barriers to divorce, more people choose this option -- even when faced with difficulties that many couples could overcome with the right kind of effort," write Markham, Stanley and Blumberg. Sometimes married couples come to see the end of their marriage as written on the wall. With liberalization of divorce, society, such as it is, stepped aside, and in its silence made the continuation of a marriage the decision of the individuals. Low-cost, pro se divorce is just economics catching up with the law, just as the law caught up with changes in American society.



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