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September 24, 2009. No-Fault Divorce Turns 40

By: Josh D. Simon

It's with unintentional irony that we note the 40-year anniversary of something that, according to some, has enabled fewer anniversaries -- of the wedding kind -- over the last four decades than anything else: no-fault divorce.

Before No-Fault Divorce

Prior to no-fault divorce, spouses seeking divorce had to prove that their partner was at fault for the marriage breakdown. Accepted legal grounds for divorce included (but were not limited to) physical or mental abuse, abandonment, insanity, or lack of sexual intimacy. 

Why No Fault Divorce?

Legislators viewed burden of proof to be too heavy for divorcing people; particularly on women, who simply didn't have the resources or means to prove that their husband was at-fault for the broken marriage. No-fault divorce was therefore created to alleviate this burden, and create a more civil, humane, practical and accessible divorce process. While financial, custodial and other issues would still remain in the hands of the court (unless a negotiated settlement between spouses was reached), a unilateral claim of "irreconcilable differences" was sufficient to end a marriage.

The Legislative Process

Signed into law on September 4, 1969 by California Governor Ronald Reagan, no-fault divorce quickly spread across the US; first to Iowa, and then to Colorado, Florida, Michigan and Oregon. By 1985, all states had enacted no-fault divorce legislation except one: New York .  

Why not New York?

New York legislators worried that instead of making divorce more civil and humane for women, no-fault divorce would have the opposite effect: it would weaken a woman's ability to gain leverage in divorce proceedings, ultimately exposing them to unfair settlements. In other words, the courts would grant wives less alimony from their cheating, abusive, neglectful (and so on) husbands, because there was no issue of fault -- it wasn't even something that wives could argue in their favor. As such, under New York Divorce law, both spouses must first formally separate for a year before divorce is established.   

UPDATE: New York legislators have begun debating no-fault law as an option. Read more here.

No-Fault in Canada

In Canada, renovations to the Divorce Act in 1968 created a variation of no-fault divorce that put aside the need for spouses to prove fault, and replaced it with a practice similar to the one adopted by New York (formal separation for one year).   

The Story so Far

So after 40 years, we're obliged to ask the big, booming question: has no-fault divorce been successful? Has it achieved fairness, civility and equity? Has it empowered individuals and protected their rights; particularly women? Or has it had the opposite effect of undermining the family unit, exposing innocent spouses -- including women -- to the unilateral, life-changing decisions of their unscrupulous partners?

As with all unresolved debates, the answers depend on which camp you ask.

Critics of No Fault Divorce

Critics of no-fault divorce are -- to put it mildly -- unimpressed by its impact and legacy. They claim that it has thrown open the doors of divorce and is directly responsible for the increased divorce rate (more on this in a moment). They further claim that it has weakened the concept of family to the point that it has made divorce the norm; not the exception. Spouses can now take the "easy way out" by seeking a divorce, regardless of the impact this has on families -- especially children and extended family members. And if we go further right on the religious-political spectrum, one hears the opinion that no-fault divorce has encouraged the rise of same-sex unions, which this group deems immoral.    

Proponents of No Fault Divorce

On the other hand, proponents of no-fault divorce accept it as an essential right that a married individual is mercifully entitled to; especially in light of the fact that, as noted above, divorce was traditionally a burdensome -- if not impossible -- task for many women to achieve. Furthermore, they claim that no-fault divorce leads to less confrontational divorces, which is good for everyone; especially children. It also reduces the time and complexity of divorce proceedings, which helps reduce the burden on overwhelmed and under-resourced family courts. 

The Statistics

Critics of no-fault divorce point to its direct, unwanted role in increasing divorces; a rate that author, lawyer and sociologist Thomas Marvell pegs at 20-25%.

However, proponents of no-fault divorce respond by pointing out that there are many other factors that influence divorce, and furthermore, the statistics prior to no-fault divorce were hardly idyllic. According to Miami lawyer Stanley Rosenblatt, whose 1969 book "The Divorce Racket" was a driving force in the no-fault movement:  

  • prior to no-fault divorce, 25% of marriages were already ending in divorce - it wasn't a new or rare social concept at all;
  • prior to no-fault divorce, 85% to 90% of divorces were uncontested -- which meant that most divorcing spouses were engaged in some form of "no fault" divorce even before it existed; 
  • prior to no-fault divorce, spouses spent surprisingly little time choosing their partner -- which defied the myth that no-fault divorce encouraged more "impulsive" (i.e. doomed from the start) marriages. 

The Verdict?

Despite being 40 years old, the jury on this debate is still out -- and there is no resumption in sight. Critics and proponents continue to fire a mixture of arguments, opinions, accusations, and statistics at the other; some of them factual, some of them fictional, and some of them in the middle. And now that the debate has made its way to the Internet and its organic blogosphere world, more fuel is being added to the fire.

At the very least, we can hope that this debate, in whatever shape and form it takes, strives to be civil, humane, responsible and fair. Ultimately, that's what everyone -- critics and proponents alike -- can agree that this is what divorce should be. 

How we get there, and how soon, remains to be seen. It'll probably take a least another 40 years -- likely more.   


For now you can view US divorce stats here, Canadian divorce stats here, and divorce rates by state here.



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