At-Fault Divorce Research Paper

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Today all 50 states and the District of Columbia have some provision on their books for securing the nonadversarial dissolution of marriage through no-fault divorce. Nevertheless, until 1970, when California became the first state to institute no-fault, divorce was attainable only by attributing blame for the breakdown of the marriage to one of the spouses.

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Fault bases for divorce varied significantly among states but tended to include marital misbehaviors such as adultery, cruelty, desertion, and imprisonment for a crime. Even when couples agreed that the relationship should end, they were forced to collude in convincing a judge that one of these offenses had been perpetrated against the marriage by the “guilty” partner, whom the court would then punish by terminating the marriage. Often, particularly late in the tenure of the at-fault divorce regime, the court itself, including attorneys for the spouses and judges, would collude with the marital parties to stage a divorce-worthy marital offense. The general legislative and juridical distaste for such wholesale collusion within the legal process was one of the primary factors leading to the downfall of the fault-based divorce regime, which was relatively quickly replaced by no-fault marital dissolution on a state-by-state basis, following California’s adoption of no-fault divorce statutes in 1969.

Three primary elements of divorce were affected, to a greater or lesser extent, by the transition from an at-fault to a no-fault basis for divorce. These elements included dissolution of the marriage, awarding of alimony or spousal support, and division of property. Under the fault-based regime, the court held considerable discretion to weigh the attribution of blame and, thus, make support and property awards based on the judge’s valuation of the marital offense. No-fault divorce regimes have been implemented differently in different states, and, as a result, outcomes vary from jurisdiction to jurisdiction; nevertheless, valuation of fault or blame has generally, but not universally, been removed as a means for determining monetary and property redistribution.

Historical Context

Marriage in the United States has traditionally been seen as a lifetime proposition, lasting until death parts husband and wife. At a pragmatic level, states have entered into the marriage relationship by seeing themselves as having a substantial interest in ensuring the (re)production through the family of good, productive citizens. Because some marriages are contracted that are unable to fulfill this function, the state has historically attempted to ensure that those marriages could be dissolved, and divorce procedures for doing so have been a more or less standard part of the cultural landscape since the nation’s founding. Historically, therefore, marriage has been a site of interest to three parties, including both marital partners and the state. Divorce, or the legal termination of marriage, was, therefore, structured to reflect the interest of the state in the viability of the marriage.

Although divorce has been more or less stigmatized over the course of the last several centuries, until the latter part of the 20th century it was premised on a foundation of fault. Fault bases for divorce included adultery, cruelty, desertion, and incarceration for a crime, among other offenses. That is, for a divorce to be granted, the state had to determine that some offense had been committed that disrupted the viability of the marriage and to decide which party was at fault. The determination of fault would affect not only the state’s decision to terminate the marriage but also the amount of alimony or spousal support to award the “innocent” spouse and the relative distribution of property. Fault was the basis for the state’s granting a divorce until approximately 1970, when California became the first state to institute a no-fault divorce regime.

The fault-based divorce regime was adversarial by definition, requiring that one partner be seen as the innocent victim and the other as the victimizer. In this vein, one thing should be noted: Although restrictive divorce laws could keep people from divorce and subsequent remarriage, they could not keep relationships happy or couples together who were determined to separate. Over the course of the 20th century, as marriages came to be seen as venues for the propagation of self-fulfillment, there was a significant increase in the number of partners who were in mutual agreement about the termination of their relationships. These couples then often agreed to make misrepresentations to the court in order to perpetrate the fiction of fault, and, in many cases, court personnel, including attorneys and judges, colluded with the litigants to effect the divorce; if judges did not subscribe to the fiction being perpetrated, the divorce could not be granted.

Of course, some spouses did not agree about the viability of their marriage, even after marital misbehavior had been committed by one of them. When this happened, the innocent party essentially held all of the cards, as the statutes decreed that only the innocent spouse could initiate the divorce. When a divorce suit was filed, the wrongdoer might defend himself or herself against the suit or might allow it to proceed without defense. Sometimes, the guilty partner would file a countersuit against the other spouse, and, when the judge found that each partner had committed offenses against the other, the petition for divorce was denied. The innocent spouse was also empowered in terms of property division and alimony, over which the judge exercised significant discretion. In the judicial context, use of financial means to punish the at-fault partner was distinctly gendered. Thus, if the partner at fault was the husband, he would likely be punished through the allocation of significant property and a substantial alimony award to his wife. If, on the other hand, the at-fault partner was the wife, a much smaller alimony award would be made, along with a more modest distribution of property.

Under the fault-based divorce regime, then, the discretion of the judge was paramount in determining fault and making financial distributions, and that discretion tended to favor the innocent party in the divorce. Scholars have referred to the existence of a judicial patriarchy, which through its family law discretion could preserve traditional marital dependencies, even after divorce. Critics of the no-fault divorce revolution that began in the latter part of the 20th century have pointed to the fault-based regime as having the potential to be more financially advantageous for women than the no-fault regime. When the basis for adjudicating property and alimony awards was premised on misbehavior in the marriage, women tended to benefit; when support and property are divided “equally” based on equal responsibility of the partners for the breakdown of the marriage, women tend to be financially disadvantaged. While this premise may appear reasonable, research has shown that many ex-wives who were awarded alimony did not receive it or did not receive it for very long. Such awards were frequently changed, depending on the changing circumstances of the ex-partners; thus, women who remarried or cohabited with a new partner tended to see their awards reduced if not eliminated entirely. Also, when ex-husbands remarried, their need to provide for their “new” families often caused judges to rethink financial awards to the prior spouse. Moreover, because judges would make paternalistic use of financial awards to ensure the “protection” of ex-wives, such awards were often used to control women’s behavior, keeping them in a dependency relationship and reaffirming their traditional roles with the threat that if they deviated from those roles (by establishing a new relationship, for instance), their support payments would be reduced or eliminated.

Criticisms of Fault-Based Divorce

As discussed above, the downfall of the fault-based divorce regime largely resulted from the collusion and misrepresentations required when a married couple agreed on the need to terminate their relationship. The involvement of lawyers and judges in that collusion caused the integrity of the legal system to be questioned. Moreover, since divorce regimes are premised on the public perception of marriage in any given era, changes in that perception mandated a move toward a divorce regime that recognized new roles for marriage. Thus, as more women entered the paid workforce, marriage began to transition from a dependency-based model to one that focused on mutual satisfaction and happiness. Some social scientists have suggested that marriage became deinstitutionalized as it became more focused on the individuals involved. With that deinstitutionalization, the state’s interest in marriage was seen to decline in favor of the interests of the partners, and marriage breakdown was seen as the responsibility of both partners rather than as the fault of one of them.

Thus, a new era in divorce evolved, reflecting the desire of spouses to decide whether marriage was meeting their needs. No-fault divorce statutes arose to meet this new need that corresponded with the new, more individualistic, definition of marriage. In this sense, the no-fault revolution represented both a reaction to the collusion and hypocrisy endemic to the fault-based divorce regime and a sense that marriage, itself, had changed.

Fault-Based Divorce Today

Today, all 50 states and the District of Columbia have instituted no-fault divorce provisions in their statutes, yet many still have fault bases on their books. In fact, as the no-fault revolution advanced in the 1970s and 1980s, a number of states simply added provisions to their existing fault-based statutes making proof of “irreconcilable differences” one standard for dissolving a marriage. In these states, either fault or no-fault procedures can be used. Some states took a more conservative approach to no-fault itself by incorporating a separation requirement in their no-fault statutes, thus determining that “desertion” could be used to justify the dissolution of a marriage after a specified period of spousal separation.

In the last several decades, a backlash has developed against the no-fault divorce regime, instigated by several social factors. First, the continuing high (albeit currently stable) rates of divorce in the United States have been blamed on the “easier access” to divorce resulting from the imposition of no-fault standards, which have been referred to by critics as “divorce on demand” and “unilateral divorce.” Moreover, no-fault divorce has been blamed for increasing the impoverishment of women and their dependent children in single, postdivorce families. Reacting to these perceptions, marriage reformers and legislators, worried about the public cost of impoverished single-parent families, have begun to suggest a return to fault-based models of divorce that once again punish marital behaviors that do not conform to the patterns of the traditional heterosexual two-parent family. Proposed and enacted reforms include so-called covenant marriages, currently in place in Louisiana, Arizona, Arkansas, and Kansas, a marriage “choice” that essentially returns divorce to a fault basis by allowing it only after the commission of grievous marital misconduct by one of the spouses or after a lengthy period of spousal separation; in Louisiana, for instance, that period of separation is two years. Other states have extended the period of separation required before a divorce can be finalized, and still others have mandated a (sometimes protracted) period of marital counseling before allowing divorce. While no states have yet to rescind their no-fault provisions for marital dissolution, many states have considered returning to an entirely fault basis.

Divorce is variably perceived as both a cause and an outcome of what has been termed the crisis of marriage and the family, and the vacillation of legislators and marriage promoters about the choice of divorce regime is evidence of the complexities involved. Nevertheless, family and legal scholars tend to be more circumspect in advocating a return to a purely fault-based divorce regime, noting the interconnection of transitions in the meaning of marriage to the operation of the divorce regime. These scholars tend to prefer implementing fixes to the current no-fault regime over returning to the fault-based regime of old.

Bibliography:

Biondi, Jane. “Who Pays for Guilt? Recent FaultBased Divorce Reform Proposals, Cultural Stereotypes, and Economic Consequences.” Boston College Law Review, v.40 (1999).
Brook, Heather. Conjugal Rites: Marriage and Marriage-Like Relationships Before the Law. New York: Palgrave Macmillan, 2007.
Cherlin, Andrew J. “The Deinstitutionalization of American Marriage.” Journal of Marriage and Family, v.66 (2004).
Cott, Nancy. Public Vows: A History of Marriage and the Nation. Cambridge, MA: Harvard University Press, 2000.
Estin, Ann Laquer. “Golden Anniversary Reflections: Changes in Marriage After Fifty Years.” Family Law Quarterly, v.42/3 (2008).
Gi, Angela. “Marriage, Divorce, and Dissolution.” Georgetown Journal of Gender and the Law, v.4/1 (2002).
Singer, Jana B. “Divorce Reform and Gender Justice.” North Carolina Law Review, v.67 (1989).