Fault or no fault

Christian Century, June 5, 2002 by Muller Davis

DIVORCE IS a disruption of the collective interests of the family by the self-interest of one or both of the spouses. Divorce is selfish. In 35 years of practicing family law, I have seldom encountered a spouse who obtained a divorce out of concern for his or her partner or for the sake of their children.

Lawyers have not contributed much to the support of marriage and the family, even though the need for shoring up such support is quite apparent. Most of the best law schools have not given a high priority to family law. The family law courses that do exist have concentrated narrowly on the substantive law and the mechanics of getting people divorced. Lawyers' role in supporting marriage may not have even been considered relevant. Their focus remains on who gets what, be it income, property or children.

Lawyers can use their offices to support marriage. But this opportunity will be missed if the lawyer does not ask appropriate questions and listen, if he (or she) does not consider the support of marriage a part of his job description, if he takes the position that a client seeking to keep her marriage together is in the wrong place, if he believes that lawyers who encourage reconciliation appear weak, or if he tries to shunt the whole problem off to the mental health professionals.

One cannot overlook the role of money in all this. Lawyers are paid more for divorces than for reconciliations.

Prior to 1969, marriage was generally regarded in most states as a contract between two parties that could be dissolved only if one of the spouses committed an act legally recognized as incompatible with the continuation of the marriage. The incompatible action was called a "fault ground" for divorce. Divorce was granted by courts only upon proof of a fault ground, such as adultery, extreme and repeated cruelty or desertion for an entire year. At the granting of a couple's divorce, one person was found guilty and one innocent.

These laws were satisfying to those who for religious or other reasons believed that marriage is a union or a contract for life that cannot be dissolved except in the most exceptional circumstances. But the fault laws did not necessarily preclude divorce, at least for those who could afford the process.

There were many avenues open to obtaining a divorce. The most common method was by agreement. But reaching an agreement almost invariably involved money. If the spouse who sought the divorce was guilty of adultery, for example, he (or she) could not obtain a divorce in a fault state, because he was guilty of a ground for divorce. He therefore usually had to satisfy his spouse financially before she would agree to proceed against him to obtain the divorce. If the negotiations failed, a trial could result in denial of the divorce, even under circumstances in which each spouse proved the other guilty of a ground for divorce. Then the spouses, if they did not reach an agreement, were consigned to continue their marriage after a prolonged, rancorous session in the courthouse.

Fault divorce laws did not readily produce equitable results and often favored the wealthy. Despite their inadequacies, however, such laws led to fewer divorces. A partial reason for this is that the less well-off had less access to the system. A more complete reason is that the restrictive divorce laws were part of the values of a society that disapproved of divorce and favored the preservation of marriage. Marriage therefore had a framework of support in place, not only from the legal system but also from families, churches, friends, children, schools, workplaces, media--from almost all of society. Marriages in need of repair had institutional resources from which to seek help. It was considered right to be married and wrong to be divorced.

No-fault divorce laws were enacted beginning in 1969. Every state now has no-fault grounds for divorce, permitting a spouse who is dissatisfied with the marriage to obtain a divorce simply on that ground. The theory is that a marriage in which one or both spouses no longer wish to participate is irretrievably broken down.

Divorce proliferated under the no-fault divorce laws in numbers never seen before. Coincidentally, a body of research evolved that gave divorce a respectable sociological and theoretical foundation. The research concluded that spouses in unhappy marriages are better off obtaining divorces and pursuing their individual lives. Children are resilient and can recover from being part of a broken family, according to these findings. Psychological therapy and drugs can repair people under most circumstances, so any damage that results from divorce can be fixed. The earlier concern for children of divorce and for the spouse who wanted to keep the marriage together was seen as misplaced.

It is no surprise that a crumbling of the institutional support for marriage accompanied society's change of attitude about divorce. For example, families, clergy, psychologists and magazine columnists who formerly supported lifetime marriage now give counsel on how to get through a divorce and live one's life afterwards. William J. Doherty reports that over 60 percent of marriage and family therapists are "neutral" on the subject of marriage or divorce in providing therapy. It does not matter whether they help create a good marriage or a good divorce.