Time to Roll Back No-Fault Divorce

Article excerpt

The explosion of divorce in the last 30 years -- in terms of its frequency and acceptability -- should be viewed in the historical context of the "no-fault revolution" that caused it and the older traditions of family and marriage that preceded it.

Traditional beliefs held that marriage was meant to be permanent. Furthermore, the desire for divorce was not held to be self-justifying, as it is now. The grounds for divorce had to be circumstances that justified making an exception to the presumption of marital permanence. The spouse desiring divorce had to show that the other spouse had committed one of the "faults" recognized as capable of disolving a marriage--the basis of fault-based divorce. Although the concept varied from state to state, the classic grounds for divorce were cruelty, desertion and adultery.

The "no-fault revolution" was a wave of legislative reform in the states starting with California's 1969 enactment of a statute allowing for "no-fault" divorce -- in effect, divorce on demand -- with no requirement to prove fault. One by one, other state legislatures followed suit. The last holdout, South Dakota, fell in 1985.

According to economic historians of the family, members of the premodern family were close-knit and tied to their land. The industrial revolution and the rise of factories made economically productive work something men did outside the home. The family became an island in a sea of acquisitiveness and self-centeredness.

"The hope that commerce would make men 'easy and sociable,' not acquisitive and rapacious, came to rest largely on the institutionalization of deferred gratification supposedly provided by the family -- the heart and soul of the middle-class way of life," write historian Christopher Lasch in The True and Only Heaven: Progress and Its Critics.

Since World War II, labor-saving devices relieved women of many onerous tasks around the house and at the same time fostered the growth of businesses that needed employees. The market demanded fewer unskilled shop-floor employees and more white-and pink-collar workers. Life inside the home seemed more marginal than ever. For many women, it became plausible to attach the word "mere" to "housewife." Feminism spread rapidly in this environment, dissolving the premodern and the industrial-era models of the family.

Thus, it was only a matter of time until the sea of market values engulfed the island of the family. Today, the claims of the family as a unit are seen as trivial in comparison with the desires of individual family members. We have become hostile to the very idea of binding commitments. "Never say always," is what the culture is telling us.

The old, fault-based system of divorce law had its roots in the view of marriage as sacramental and indisoluble. The concept of "fault" demonstrates how marriage was more than a contract. The idea of fault is more at home in tort law than in contract law, and the use of that idea in divorce law suggests that marriage, similar to the law of torts, somehow transcended the mere agreement of the parties.

When these fault-based protections for marriage were tossed out in the no-fault revolution, they could have been replaced with contract-like protections -- but they were not. While some courts have opted to explain alimony as a form of compensation for breach of contract, this remains only one of several competing theories of alimony. The Uniform Marriage and Divorce Act, enacted in a handful of states, explicitly bars consideration of fault in the setting of alimony.

Modern divorce law is a triumph of ex post legal analysis, which looks at how the law can deal with an already existing situation. Ex ante legal analysis, on the other hand, looks at how a given rule of law could affect situations that will develop in the future.

For instance, suppose a court is wrestling with whether a medical patient who has signed an agreement not to sue his doctor nonetheless can sue when the doctor has committed malpractice. …