Time to Roll Back No-Fault Divorce

By Wagner, David M. | Insight on the News, June 27, 1994 | Go to article overview

Time to Roll Back No-Fault Divorce


Wagner, David M., Insight on the News


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. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Time to Roll Back No-Fault Divorce
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.