The issue of “no fault” divorce has become a recent topic of interest on the national stage. There has been talk of certain conservative states walking back their “no-fault” divorce policies and reinstituting a requirement for a spouse seeking a divorce to show that the other spouse is guilty of inappropriate behavior warranting a divorce in order to be granted one. Last year I wrote about the challenges that arise from blame and the desire for vindication that fuel the fire of contentious divorces. See here. In this week’s blog I explain the difference between “fault” and “no-fault” divorce, explore a little about why this issue is arising, and I then will explain why moving away from “no-fault” really is a terrible idea.
Fault vs. No-Fault. It used to be the law in every state that in order to be granted a divorce, the spouse seeking the divorce would have to prove that the other spouse had behaved in such an egregious manner that the granting of a divorce was warranted. The innocent spouse would need to provide evidence that the other spouse had committed adultery, physical abuse and cruelty, abandonment, extended incarceration and/or had an incurable mental illness. The relationship simply not working or falling out of love was no reason to be granted a divorce. If you did not have proof that your spouse behaved badly, there was no getting out of the marriage.
In 1969 California became the first state to institute “no-fault” divorce. A spouse who wanted out of the marriage only had to state that “irreconcilable differences” had arisen in the relationship and that the relationship was irretrievably broken. There did not have to be a guilty spouse and proof of such guilt. The new policy became that if either spouse decided that the marriage was not working, they would no longer be forced to stay in it. Since 1969, all the other states have incorporated some version of “no-fault” divorce.
Why go back to fault? If you have not been paying attention, there has been a recent push by some to seek to restore certain traditional values in our society. The cornerstone of this movement is a belief that we were better off making it difficult to get out of a marriage, which in turn would serve to preserve the sanctity of the institution of marriage. The thinking is that by expanding the grounds for divorce we cheapened, normalized and even encouraged it. The charge is that making divorce easy has contributed to making us a completely amoral society. The result is children being brought up in single parent homes which is presumably worse than being brought up in an intact home despite the marriage being broken. There is a nostalgia for how things were and an accusation that instituting “no-fault” was a contributing factor in the decline of the traditional family.
So, why the move to no-fault? Ronald Reagan was the Governor of California when we became the first state to institute “no-fault.” At that time he stated, “I believe it is a step toward removing the acrimony and the bitterness between a couple that is harmful not only to their children, but also to society as a whole.” How do we benefit from forcing a spouse to remain in a relationship that is irretrievably broken? How do children benefit from having two parents who are unhappy together, who are in constant conflict, and who do not want to be together? Part of the policy shift was to remove a contentious issue from divorce (having to prove bad behavior) and part of the policy was to recognize that unhappy couples should not be forced to remain living in the same home.
Why going back to “fault” would be a bad idea. We implemented “no-fault” to reduce the acrimony and bitterness between couples while recognizing unhappy couples should not be forced to remain forever partners. Would restoring “fault” divorce accomplish what is being sought by those who propose it?
Preserving sanctity of marriage. Nobody enters a marriage expecting it to end. Marriage is hard work and we must constantly be striving to maintain clear communication with our spouse, sharing in the work to be done for the good of the family and assuring that one another’s needs are being met. Having “no-fault” divorce does not prevent couples from staying together as a family. We do so because that is what we want and commit ourselves to. It is voluntary and I can’t imagine having somebody be able to tell me that once you marry you have no choice but to remain together forever unless you can show your spouse has significantly wronged you. Marriage works because it is what we choose and want. There is no sanctity in the marriage if there is not that will to be in it. Rather than promoting and preserving marriage, I think shifting to “fault” would have a chilling effect on marriage. Why would we subject ourselves to the state being able to tell us that we have to remain in a broken relationship? What are we preserving by forcing two people to stay together?
The big litigation reason. My career began well after California moved to “no-fault.” I am thankful for that. Over the years I have heard all sorts of reasons for why a divorce is taking place. Many of them include a bad act by one spouse. Sometimes it is a mutual decision and other times one spouse makes the choice to leave. A common theme is that the reason for the breakdown of the marriage is often a source of great contention, resentment and anger. It often sets the divorce off to a rocky start. Resolving these emotions is a very important part of finding a healthy path through divorce to resolution. By making fault an issue in the divorce, these emotional issues that we are seeking to navigate through to get to a place where the couple is ready to take care of the business, remain a central focus and distraction.
Fighting over who is to blame for the breakdown of the marriage can be a very contentious issue. At the end of the day, legally establishing who is to blame does not put the couple any closer to sorting out the real business of the divorce, which is figuring out how to share the children, figuring out how to manage the finances and figuring out how to divide the assets and the obligations. It may make the innocent spouse feel some sense of vindication, but at what cost? If there is something standing in the way of the marriage continuing and it is a foregone conclusion, spinning our wheels and expending our energy on what has already taken place and why it happened is not the best use of resources.
I know there are many occasions when one spouse is to blame for the breakdown in the marriage. There may very well be a good reason to be upset. No-fault doesn’t mean that the pain and the emotions go away or that we can’t be upset or angry. These feelings will need to be dealt with. I am just saying that making them a focus of the divorce and requiring the harmed spouse to prove the bad conduct keeps the couple mired in the past, and prevents them from moving forward to the necessary tasks at hand. Drudging up acts of infidelity, cruelty, drunken episodes, pointing fingers and airing dirty laundry about indiscretions sets a really contentious tone from the outset. Having a policy that takes the focus off the past does as Reagan suggests and reduces the acrimony and bitterness in the process. Taking this contentious issue off the table is a good step in finding a healthier way through the hurt to getting things sorted out.
Our world has changed over the years. It was not so long ago that our society had pretty defined gender roles and more patriarchal and traditional family arrangements. The movement toward gender equality changed some of the traditional family roles and many of those seeking to restore such things as “fault” divorce think these changes have eroded our nation’s moral fiber. As a family law professional I believe in the sanctity of marriage, but even more so I think the cornerstone of a marriage is two people consenting to a relationship. Incompatible partners should never be forced to remain together if their commitment to each other and their love for one another is no longer there. Fighting over the breakdown and being required to prove the fault of one spouse or the other would make divorces all the more contentious while forcing families to expend their resources on work that is not helping the family move forward. I don’t see any good that would come from requiring such a thing.