Application in Divorce
Many years ago, one Pennsylvania judge used to call divorce court "liar’s club," because 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. And both sides of any divorce knew it. "Every day, in every superior court in the state, the same melancholy charade was played: the ’innocent’ spouses, generally the wife, would take the stand and, to the accompanying cacophony of sobbing and nose-blowing, testify under the deft guidance of an attorney to the spousal conduct she deemed ’cruel,’ wrote one California Supreme Court justice, echoing the same sentiments.
Under the fault system, the suing partner had to prove the fault of the other and present himself or herself as blameless. "Because the assessment of guilt determined division of
assets between spouse, the stakes were high. Even when the partners desired the divorce, they were often reduced to perjury and collusion, sometimes staging ’adulterous liaisons’ to be captured in grainy photographs by lurking private eyes. And the definition of cruelty in a marriage was stretched to ludicrous length." These fictitious liaisons entered the legal lexicon as "the hotel divorce."
Beginning in the 1960s, many commentators including judges and lawyers argued that people who wanted to end a bad marriage would not stop at lying under oath in court, so perhaps the law should provide a straight forward procedure for ending the marriages of people who could not get along.
In 1970, the desire for reform bore fruit with California’s No-Fault Divorce Law, which had been signed in September 1969 by Governor Ronald Reagan.
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.
No-fault changed divorce from a public adversarial system pitting victims against victimizers, "with the state acting as enforcer of marital norms,"
to a system where divorce is "a private decision between unhappily married, but legally blameless, partners." In effect, it privatized divorce.
Today, every state in the nation permits at least one of two no fault mechanism 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.
Liberal divorce is not without critics. Conservatives frequently blame no-fault the "dramatic surge" in the number of divorces since. In 1960, 16 percent of the first marriages end in divorce; "today, the figure is closer to 50 percent. In the five years follow the enactment of no-fault in California, the national divorce rate increased almost 40 percent."
However, the social acceptance of divorce, of which no-fault is both a cause and a result, has done much to eliminate the stigma once associated with failed marriages. The phrase good divorce, which one generation might have considered oxymoronic, now seems reasonable: some marriages should and must end.
"The causal connection between the unraveling of divorce and the unraveling of marriage is admittedly debatable." But conservatives believe that in a effort to make divorce more humane, marriage has been made less meaningful, and they suggest that liberal divorce weakens the social fabric.
One of the arguments made in
support of no-fault was that is would attenuate the acrimony of divorce actions. Experience has not borne this out. "It still gets ugly when families break apart. In divorce the scarlet letter no longer stands for adultery -- it now can refer to malicious accusations of child sexual abuse." Whereas conflict once centered on blame, now it focuses on child custody and property distribution.
Moreover, no-fault divorce means one spouse can divorce the other without his or her
consent. The unilateral nature of no-fault has been a frequent target of critics on the right. While the stigma of divorce has been reduced, the pain and suffering of the parties, particularly the party who does not want the marriage to end, remains.
Efforts at divorce reform now focus largely on strengthening marriage.
Covenant marriage (now available in Louisiana, Arizona and Arkansas) seeks to make divorce more difficult by "tapping into a couple’s commitment level as they first approach the altar." Covenant marriage provides for mandatory pre-marital counseling, a "legally binding agreement" providing for the preservation of the marriage, and a return to fault-based divorce in the event the marriage must end.
See also Fault and No-fault Divorce;
Divorce Statistics; Covenant Marriage.
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