No-fault divorce

No-fault divorce is a divorce in which the dissolution of a marriage does not require a showing of wrongdoing by either party.[1] Laws providing for no-fault divorce allow a family court to grant a divorce in response to a petition by either party of the marriage without requiring the petitioner to provide evidence that the defendant has committed a breach of the marital contract.

History

The earliest precedent in no-fault divorce laws was originally enacted in Russia shortly after the Bolshevik Revolution. They were legislated in the series of decrees that issued in early 1918. The decrees included nonjudicial dissolution of marriage by either party and mandatory provision of child-support.[2] The purpose of the Soviet no-fault divorce laws was ideological, intended to revolutionize society at every level.[3] They were the subject of significant revisional efforts from World War II to the 1960s. Major revisions were concluded in 1968.

In the 1925 Soviet conference to draft the Family Law of 1926, people debated whether marriages should even be registered. Nikolai Krylenko, a chief architect of the Soviet law of marriage and leading theorist of "socialist legality" in the 1920s and 1930s, described the purpose of divorce without restraint as a step toward the ultimate goal of the abolition of marriage, thereby establishing the socialist transformation of society.

Of course, if living together and not registration is taken as the test of a married state, polygamy and polyandry may exist; but the State can't put up any barriers against this. Free love is the ultimate aim of a socialist State; in that State marriage will be free from any kind of obligation, including economic, and will turn into an absolutely free union of two beings. Meanwhile, though our aim is the free union, we must recognize that marriage involves certain economic responsibilities, and that's why the law takes upon itself the defense of the weaker partner, from the economic standpoint.[3]

California was the first U.S. state to adopt what are now called "no-fault" divorces in the United States in 1969.[4] California's law was framed on an earlier and roughly contemporaneous effort, of the non-governmental organization, National Conference of Commissioners on Uniform State Laws, which began drafting a model of no-fault divorce statute for states to consider in 1967.[5] The Soviet 1968 and California 1969 no-fault divorce laws bore many detailed similarities of terminology, substance, and procedure.[2]:50–57

Controversy

Arguments for no-fault divorce

Economists Betsey Stevenson and Justin Wolfers, based on findings in their research, argue that domestic violence and female suicide decline in states that legalize no-fault divorce.[6] Specifically, they report that "states that adopted no-fault divorce experienced a decrease of 8 to 16 percent in wives' suicide rates and a 30 percent decline in domestic violence."[7] They also argue that their research proves that there is no permanent effect of no-fault divorce laws on divorce rates.[6]

Stephanie Coontz, a professor of history at Evergreen State College, states that "in the years since no-fault divorce became well-nigh universal, the national divorce rate has fallen, from about 23 divorces per 1,000 married couples in 1979 to under 17 per 1,000 in 2005."[7] She adds that "once you permit the courts to determine when a person's desire to leave is legitimate, you open the way to arbitrary decisions about what is or should be tolerable in a relationship, made by people who have no stake in the actual lives being lived."[7]

A 2010 New York Times editorial said that New York was "the only state where a court must find fault before granting a divorce unless the spouses have lived apart for a full year under a formal separation agreement — a proven formula for inviting false testimony, endless litigation and generally making divorce far more painful than it needs to be."[8] Later that year, New York became the final state to allow no-fault divorce. Lawyer L.M. Fenton states that "Feminist holdouts against New York's new [no-fault divorce] bill don't understand how family law affects women today", adding: "It also mystifies me that spouses could still, even in 2010, be forced to stay married to someone who refused to let go."[9] She adds:

Fault-based grounds usually include mental cruelty, but true mental cruelty has a psychological component that can make it very difficult for the abused spouse to articulate that abuse. More to the point, the abused spouse may be terrified to describe the relationship on paper and testify about it in a court. And of course, a controlling partner will always choose the path of most resistance to whatever it is that the other spouse wants.[9]

Arguments against no-fault divorce

The National Organization for Women opposed the introduction of no-fault divorce in New York state because it would allow a party who actually is at fault to obtain a divorce in which "alimony, maintenance [and] property division" would be determined without the judge considering "the facts, behavior and circumstances that led to the break-up of the marriage".[10]

A paper published in The Harvard Journal of Law and Public Policy, written by Douglas Allen, on the economics of same-sex marriage, argues that the introduction of no-fault divorce led to a six-fold increase in just two years, after a century of rather stable divorce rates. Also, the law increased the rate at which women entered the workforce, increased the number of hours worked in a week, increased the feminization of poverty, and increased the age at which people married.[11]

Stephen Baskerville, a political scientist at Howard University, argues that no-fault divorce rewards wrongdoers, reduces the need of marital binding agreement contracts at the public's expense, and helps women take custody of their children at the husbands' expense in many cases where the man has done nothing wrong. He also adds that a ban on divorce will not work, because people will separate themselves and be in a permanent state of adultery, or they will create a hostile home environment for the children.[12]

Laws by country

Australia

Main article: Australian family law

Australia's laws on divorce and other legal family matters were overhauled in 1975 with the enactment of the Family Law Act 1975, which established "no-fault" divorce in Australia. Since 1975, a divorcing couple need only establish a twelve-month separation; they need not show either party is at "fault" for the divorce to be granted by the Family Court of Australia. However, a residual "fault" element remains in relation to child custody and property settlement issues.

Canada

Prior to 1968, the only grounds for divorce were adultery or cruelty. However, in 1968, the Divorce Act was amended to permit divorce for other reasons, including physical and mental cruelty and separation for at least 3 years. In 1986, the Divorce Act was further amended to permit divorce after one year's separation, with no requirement to prove "fault" by either spouse.

China

The People's Republic of China has allowed no-fault divorce since the adoption of the New Marriage Law in 1950. No-fault divorce has become much more common since the 1980s. The current marriage law provides that divorce shall always be granted if sought by both husband and wife. Divorce is also granted if one party can present evidence of incompatibility, such as separation for at least 2 years.

Divorce may be granted either by court or by a marriage registration office. The latter can only do so when both parties have reached an agreement on child custody and property settlement.

Mexico

In Mexico City, this type of divorce is legally known as divorcio por mutuo consentimiento and colloquially as divorcio exprés or divorcio express.

Russia

No-fault divorce was introduced by the Bolsheviks following the Russian Revolution of 1917.[3] 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 parish church. Under these non-secular laws, divorce was highly restricted (but always somewhat available, as no major religion in Russia completely disallowed divorce).

The 1918 Decree on Divorce eliminated the religious marriage and the underlying ecclesiastical law, 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. The divorce law under the Bolsheviks did not penalize the husband with alimony, child support, or debtor's prison for non-payment, as every individual was to be provided for by the state anyway. The two partners were entirely free of legal obligations to each other after divorce.

Spain

In Spain, this type of divorce is legally known as divorcio incausado or divorcio unilateral and colloquially as divorcio exprés.

Sweden

Swedish law does not include a showing-of-fault requirement for divorce. The couple can file for divorce together or one party can file alone. If one party does not wish to get divorced or if they have children under 16 living at home, there is a required contemplation period of 6 to 12 months. During this period, they stay married and the request must be confirmed after the waiting period for the divorce to go through.[13]

United States

Probably the most well-known no-fault law was enacted in the state of California, and signed by Governor Ronald Reagan, coming into effect on January 1, 1970.[14] At that time, lawyers and judges objected to the legal fictions used to bypass statutory requirements for obtaining a divorce, which had become more commonplace since the mid-20th century. Since at least 1985, no-fault divorce has been available in all 50 U.S. states and the District of Columbia.[15][16]

Requirements for divorce prior to the enactment of no-fault divorce

Prior to the no-fault divorce revolution, a divorce was processed through the adversarial system as a civil action, meaning that a divorce could be obtained only through a showing of fault of one (and only one) of the parties in a marriage. This was something more than not loving one another; it meant that one spouse had to plead that the other had committed adultery, abandonment, felony, or other similarly culpable acts. However, the other spouse could plead a variety of defenses, like recrimination (essentially an accusation of "so did you"). A judge could find that the respondent had not committed the alleged act or the judge could accept the defense of recrimination and find both spouses at fault for the dysfunctional nature of their marriage.[17] Either of these two findings was sufficient to defeat an action for divorce, which meant that the parties remained married.

In some states, requirements were even more stringent. For instance, under its original (1819) constitution, Alabama required not only the consent of a court of chancery for a divorce (and only "in cases provided for by law"), but equally that of two-thirds of both houses of the state legislature.[18] This requirement was dropped in 1861, when the state adopted a new constitution at the outset of the American Civil War. The required vote in this case was even stricter than that required to overturn the governor's veto in Alabama, which required only a simple majority of both houses of the General Assembly.[19]

Methods for bypassing the showing-of-fault requirements for divorce

These requirements could be problematic if both spouses were at fault or if neither spouse had committed a legally culpable act but both spouses desired a divorce by mutual consent. Lawyers began to advise their clients on how to create legal fictions to bypass the statutory requirements. One method popular in New York was referred to as "collusive adultery", 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.[20] The wife would then falsely swear to a carefully tailored version of these facts in court (thereby committing perjury). The husband would admit a similar version of those facts. The judge would convict the husband of adultery, and the couple could be divorced.

In many other states, especially California, the most popular allegation for divorce was cruelty (which was then unavailable in New York). For example, in 1950, wives pleaded "cruelty" as the basis for 70 percent of San Francisco divorce cases.[20] Wives would regularly testify to the same facts: their husbands swore at them, hit them, and generally treated them terribly.[20] This procedure was described by Supreme Court of California Associate Justice Stanley Mosk:

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."[21]

Advocates for eliminating the showing-of-fault requirements for divorce

Many American lawyers and judges objected to the legal fictions used to satisfy the requirements for divorce, which were effectively rendering oaths meaningless and threatening to wreck the integrity of the American justice system by making perjury into a commonplace occurrence. As early as the 1930s, a treatise on American family law complained:

In divorce litigation it is well known that the parties often seek to evade the statutory limitations and thus there is great danger of perjury, collusion, and fraud . . . . In many cases no defense is interposed, and often when the case is contested the contest is not waged with vigor or good faith.[22]

In addition, advocates for no-fault divorce argued that the law should be changed to provide a straightforward procedure for ending a marriage, rather than forcing a couple who simply 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 feminist law professor Herma Hill Kay (who later became dean of UC Berkeley School of Law).[23]

At its convention in 1947, the National Association of Women Lawyers (NAWL) voted to draft and promote a bill that would embody the ideal of no-fault divorce and describes its efforts to promote the passage of no-fault divorce laws as "the greatest project NAWL has ever undertaken."[24]

Other states were slower to adopt no-fault divorce. For example, Pennsylvania did not introduce no-fault divorce until around 1980.

California's Family Law Act of 1969

"No-fault" divorce became more common in the United States after the California's Family Law Act of 1969, which was signed into law by divorced-and-remarried Governor Ronald Reagan on September 4, 1969, and became effective January 1, 1970.[25] The Act was in fact an amalgam of two bills which had been written and revised by the California state legislature for over two years,[26] and, once signed by the Governor, it abolished California's action for divorce and replaced it with the proceeding for dissolution of marriage on the grounds of irreconcilable differences. The grounds of irreconcilable differences were accepted as true, based on the assertions of one of the parties to the marriage, and thus the Family Law Act of 1969 eliminated the showing-of-fault requirements to obtain a divorce both for spouses seeking a divorce by mutual consent, and in cases where only one of the parties to the marriage wants a divorce.[27]

The Uniform Marriage and Divorce Act

At about the same time that California adopted "no-fault" divorce, the National Conference of Commissioners of Uniform State Laws (NCCUSL) appointed a committee to draft a uniform marriage and divorce law for consideration by state legislatures, and the American Bar Association's Family Law Section was asked to appoint a committee to work with the committee from the NCCUSL.[28] The initial draft of the Uniform Marriage and Divorce Law written by the NCCUSL committee would direct judges to grant the petitioner's request to end the marriage if the judge found that the marriage was "irretrievably broken", a term which this draft did not define.[28] Since the term "irretrievably broken" was not defined, the committee from the American Bar Association (ABA) Family Law Section disapproved of this draft of the Uniform Marriage and Divorce Act.[28] In response, the NCCUSL committee added a 180-day separation requirement in order for judges to find that the marriage had been irretrievably broken.[28] However, the NCCUSL committee also added language to allow judges to grant a petitioner a divorce if "there is serious marital discord adversely affecting one or both parties toward the marriage."[28]

The committee from the ABA Family Law Section objected to the ability of a petitioner to avoid the 180-day separation requirement by asserting "serious marital discord".[28] In his letter recommending that the American Bar Association House of Delegates not approve the amended draft proposed by the NCCUSL, Arnold J. Gibbs, the chairman of the ABA Family Law Section, stated that the NCCUSL's proposed draft created a rubber stamp type of divorce procedure. He wrote: "The creation of a mere 'rubber stamp type' of divorce procedure would not be in the best interests of the family, its individual members, and society in general."[29]

Copies of the recommendation to disapprove the NCCUSL's amended draft were provided to the National Conference of Commissioners of Uniform State Laws (NCCUSL), Young Lawyers Section and the National Association of Women Lawyers (NAWL).[29] The committee from the NCCUSL refused to further amend its draft of the Uniform Marriage and Divorce Act.[28][29]

At the 1974 midwinter meeting of the American Bar Association in Houston, Council members of the Family Law Section indicated dissatisfaction with the public image the section was getting from its opposition to the NCCUSL's draft of the Uniform Marriage and Divorce Act. In a policy statement, the ABA Family Law Section chose "to recognize separation only as conclusive evidence of marital breakdown and not as its unbending test", implying that "other kinds of evidence would be admissible to establish breakdown as well."[28]

The adoption of no-fault divorce laws by the other states

By 1977, nine states had adopted no-fault divorce laws,[24] and by late 1983, every state but South Dakota and New York had adopted some form of no-fault divorce (although some forms were not as easy to obtain as that in California).[30] South Dakota adopted no-fault divorce in 1985.[31] Until August 2010, New York still lacked a unilateral "no-fault" divorce statute; under New York divorce law, only if both parties notarized a separation agreement and lived separately for one year could a judge convert it into a divorce. New York governor David Paterson signed a no-fault divorce bill on August 15, 2010. As of October 2010, no-fault divorce is allowed in all fifty states and the District of Columbia.

In August 2000, Attorney Ed Truncellito filed suit against the State Bar of Texas, alleging the no-fault law in Texas was misapplied because he asserts that the legislative history of no-fault divorce law in Texas makes it clear that the law was meant for uncontested cases only.[32]

See also

References

  1. ↑ "No Fault Divorce Law & Legal Definition". uslegal.com. Retrieved 12 February 2015.
  2. ↑ 2.0 2.1 No-Fault Divorce: Born in the Soviet Union?, David Bolas, 14 Family L. J. 31 (1975), http://www.uniformdivorce.com/Bolas.pdf[]
  3. ↑ 3.0 3.1 3.2 "The Russian Effort To Abolish Marriage", The Atlantic Monthly, July 1926, p. 108-114.
  4. ↑ Kay, Herma Hill (1987). "Equality and Difference: A Perspective on No-Fault Divorce and Its Aftermath". University of Cincinnati Law Review 56 (1).
  5. ↑ A Reminiscence About The Uniform Marriage and Divorce Act-and Some Reflections About Its Critics and Its Policies, Robert J. Levy, 44 BYU L. Rev. 43 (1991)
  6. ↑ 6.0 6.1 "Your Comment". The New York Times.
  7. ↑ 7.0 7.1 7.2 Coontz, Stephanie (2010-06-16). "Divorce, No-Fault Style". The New York Times.
  8. ↑ "New York's Moment for Divorce Reform". The New York Times. 2010-06-18.
  9. ↑ 9.0 9.1 "No-fault divorce? It's about time". salon.com. 18 June 2010. Retrieved 12 February 2015.
  10. ↑ http://www.nownys.org/leg_memos_2010/no_fault_divorce.pdf
  11. ↑ Allen, Douglas (June 22, 2006). "An economic assessment of same-sex marriage laws". Harvard Journal of Law & Public Policy 29.
  12. ↑ Baskerville, Stephen. "No-Fault Divorce Is Harmful". Opposing Viewpoints. Retrieved 11 August 2013.
  13. ↑ "Divorce". Sveriges Domstolar - Domstolsverket, Swedish National Courts Administration. 2007-03-07. Retrieved 2008-09-29.
  14. ↑ http://www.hg.org/article.asp?id=18784
  15. ↑ "Do I Need a Reason to Get Divorced?". Lawyers.com. Retrieved 12 February 2015.
  16. ↑ http://blogs.consumerreports.org/money/2010/10/new-york-legal-no-fault-divorce-law-50-states-.html
  17. ↑ De Burgh v. De Burgh, 39 Cal. 2d 858 (1952). In De Burgh, the trial judge found both spouses guilty of cruelty against each other which had been provoked by the acts of the other. Therefore, both spouses were guilty of recrimination and neither was entitled to a divorce. The Supreme Court of California took advantage of this case to invalidate the defense of recrimination through the expansive application of equitable doctrines like clean hands, and remanded for a new trial.
  18. ↑ Constitution of Alabama (1819), Article 6, Section 13.
  19. ↑ Constitution of Alabama (1819), Article 4, Section 16.
  20. ↑ 20.0 20.1 20.2 Friedman, Lawrence M. (2002). American Law in the Twentieth Century. New Haven: Yale University Press. pp. 435–36.
  21. ↑ In re: Marriage of McKim, 6 Cal. 3d 673 (1972) (Mosk, J., dissenting) opinion available online at online.ceb.com
  22. ↑ Vernier, Chester. Section 80, "Proctors" of Divorce and Separation, Vol. 2 American Family Laws: A Comparative Study of the Family Law of the Forty-eight American States, Alaska, the District of Columbia, and Hawaii, (Stanford: Stanford University Press, 1932), p. 93.
  23. ↑ Bishop, Katherine. "Sweet Victory for Feminist Pioneer at Law School." The New York Times, 3 April 1992, sec. A, p. 19
  24. ↑ 24.0 24.1 Baskerville, Stephen (2007). Taken Into Custody - The War Against Fathers, Marriage and the Family. Cumberland House. p. 234.
  25. ↑ Johnson, Sharon. "No-Fault Divorce: 10 Years Later, Some Virtues, Some Flaws." New York Times, 30 March 1979, sec. A, p. 22.
  26. ↑ Community Property and Family Law: The Family Law Act of 1969 by Aidan R. Gough, http://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1057&context=callaw
  27. ↑ "irreconcilable differences". TheFreeDictionary.com. Retrieved 12 February 2015.
  28. ↑ 28.0 28.1 28.2 28.3 28.4 28.5 28.6 28.7 Zuckman, Harvey L. "The American Bar Association Family Law Section v NCCUSL: Alienation, Separation and Forced Reconciliation over the Uniform Marriage and Divorce Act" (PDF). 24:61. Catholic University Law Review. Retrieved 2008-08-01.
  29. ↑ 29.0 29.1 29.2 Gibbs, Arnold J. (February 1974). "American Bar Association Section of Family Law Recommendation" (PDF). Retrieved 2008-08-12.
  30. ↑ Gest, Ted. "Divorce: how the game is played now." U.S. News & World Report, 21 November 1983, pp. 39-42.
  31. ↑ Layug, Christine. "The No-Fault and At-Fault Process of Divorce," 10 July 2008, http://www.articlealley.com/article_573525_18.html
  32. ↑ Baskerville, Stephen (2007). Taken Into Custody - The War Against Fathers, Marriage and the Family. Cumberland House. p. 46.