No-fault divorce
From Wikipedia, the free encyclopedia.
No-fault divorce is the dissolution of a marriage, upon petition to the court by either party, without the requirement that the petitioner show fault on the part of the other party. Either party may request, and receive, the dissolution of the marriage, despite the objections of the other party.
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Russian history
No-fault divorce was invented by the Bolsheviks following the Russian Revolution of 1917. Before the Revolution, churches, mosques, and synagogues defined family life. It was the ecclesiastical law of the various denominations that controlled the family, marriage, and divorce. For example, the official registration of birth, death, marriage, and divorce was the responsibility of the church parish. Under these non-secular laws, divorce was highly restricted. It was essential for Bolsheviks, with their Marxist disdain for religion, to replace the ecclesiastical bond with an allegiance to the Communist party and the new Russian government; they sought to eliminate the old bourgeois notions of the family and the home.
The 1918 Decree on Divorce eliminated the religious marriage and the underlying ecclesiastical law, by replacing them with civil marriage sanctioned by the state. Divorce was obtained by filing a mutual consent document with the Russian Registry Office, or by the unilateral request of one party to the court. This new institution was designed to create a strong sense of allegiance to and an actual dependence upon the government.
United States history
Modern "no-fault" divorce came about because of widespread disgust among lawyers, judges, and the general public with the legal fictions that had become commonplace since the mid-20th century.
Prior to the no-fault divorce revolution, a divorce could be obtained only through a showing of fault. This was something more than not loving one another; it meant that one spouse had to plead that the other had committed adultery or abandonment or some other similarly sinful act. However, the other spouse could plead a variety of defenses like recrimination. Often, a judge might find that the defendant had not committed the alleged act, or that both spouses were at fault for the fact that the marriage was dysfunctional. Either way, the judge would refuse to dissolve the marriage.
Subsequently, at some point the two spouses would each find some other person they really loved, and then would seek to marry that other person. But first, they had to get rid of their existing marriage or risk prosecution for bigamy. The solution was an uncontested divorce, in which both sides deliberately agreed that the wife would come home at a certain time and discover her husband committing adultery with a "mistress" obtained for the occasion. She would then swear to a carefully tailored version of these facts in court (committing perjury in the process), the husband would sheepishly admit to a similar version of the facts, the judge would convict the husband of adultery (or some other sin like cruelty), and the couple would be divorced.
This procedure was explained by California Supreme Court justice Stanley Mosk in a passionate dissent:
- Every day, in every superior court in the state, the same melancholy charade was played: the "innocent" spouse, 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 that she deemed "cruel." — In re Marriage of McKim, 6 Cal. 3d 673 (1972) (Mosk, J., dissenting) [1].
Needless to say, this empty procedure was appalling to both lawyers and judges, who felt that it made oaths meaningless and threatened to destroy the integrity of the American justice system (by making lying in court into a commonplace occurrence).
Throughout the 1960s, numerous commentators pointed out that it might be best to recognize that two spouses who were determined to end their marriage would get what they wanted by any means necessary. Therefore, they argued, the law should adapt by providing a straightforward procedure for ending a marriage, rather than forcing a couple who just couldn't get along to choose between living together in "marital hell" or lying under oath in open court. The most prominent advocate of this position was law professor Herma Hill Kay (the future dean of Boalt Hall, UC Berkeley's law school)[2].
"No-fault" divorce was pioneered in the United States by the state of California with the passage of the Family Law Act of 1969. The Act was signed by Governor Ronald Reagan on September 4, 1969[3], and it took effect on January 1, 1970. It abolished the old common law action for divorce and replaced it with the proceeding for dissolution of marriage on the grounds of "irreconciliable differences."
By late 1983, every state but South Dakota had adopted some form of no-fault divorce (although some forms were not as easy to obtain as that in California)[4]. The no-fault revolution was complete when South Dakota finally adopted no-fault divorce in 1985. Somewhat surprisingly (given its reputation as a fairly liberal state politically) the state in which it is hardest to obtain a "no-fault" divorce is New York. To obtain a "no-fault" divorce in that state, both the husband and wife have to sign and notarize a separation agreement for the judge and be separated for a year before no-fault divorce proceedings can ensue.
Criticism
The most common criticism of no-fault divorce is that it has created an economic incentive for mothers to initiate unilateral divorces when no grounds, such as adultery or violence, exist. Courts empirically favor mothers when granting custody, and with the children comes child support. Mothers who initiate unilateral divorce tend to keep the children and a substantial portion of the property and future wages of the father. In a marriage involving disputes over finances, no-fault divorce gives mothers a legal way to seize control of property and income without having to deal with the father.
A minority of family law scholars, of whom the most well-known is sociologist Lenore J. Weitzman, have argued that even though no-fault divorce succeeded in reducing the widespread problem of perjury and in making divorce less destructive by taking it out of the adversarial system, it also had the unintended consequence of causing divisions of property and alimony to be much more unfair to female spouses than under the old system[5]. However, in 1996, sociologist Richard J. Peterson reevaluated the data acquired in Weitzman's influential 10-year study. He demonstrated that her analysis was fundamentally flawed and severely overestimated the economic impact of no-fault divorce; she subsequently conceded that his critique was correct[6].
A greater criticism is that the current form of no-fault divorce is a unilateral dissolution of marriage, home and family, with no recourse by the other spouse. The Petitioner has the opportunity to prepare for the battle to follow, while the Respondent often is trying to hold the marriage together. Thus, an unfaithful wife who becomes pregnant in an affair may end her marriage, take possession of the home, custody of the children, and collect a portion of her husband's income for years into the future. An abusive husband can file for divorce and force his wife out of the home, close her out of the family finances and close all credit cards and bank accounts at the time when she needs them in order to mount her own legal defense.
They also contend that, far from ending perjury, no-fault divorce has prompted "attorney-sponsored character assasination" as a means of winning custody and financial advantages.
The "revolution" in no-fault divorce is now entering the third generation in some families, leaving children with parents, grandparents and even great-grandparents who divorced. According to Judith S. Wallerstein, director of the long-term study on the effects of divorce begun in the early 1970s, "divorce is a long-term crisis" which inflicts permanent psychological damage on children of divorce, who themselves are more likely to suffer failed marriages ("they don't have the template to follow") or even avoid marriage in order to avoid divorce. "A huge number are staying single."
References
^ Bishop, Katherine. "Sweet Victory for Feminist Pioneer at Law School." New York Times, 3 April 1992, sec. A, p. 19.
^ Dullea, Georgia. "How Women Fare In No-Fault Divorce." New York Times, 7 November 1985, sec. C, p. 1.
^ Gest, Ted. "Divorce: how the game is played now." U.S. News & World Report, 21 November 1983, p. 39-42.
^ Johnson, Sharon. "No-Fault Divorce: 10 Years Later, Some Virtues, Some Flaws" New York Times, 30 March 1979, sec. A, p. 22.
^ Lee, Felicia R. "Influential Study On Divorce's Impact Is Said To Be Flawed." New York Times, 9 May 1996, sec. C, p. 6.
