Finding Fault in No-Fault Divorce

It was 1969. Neil Armstrong and Buzz Aldrin landed Apollo 11 on Tranquility Base, and man took his first celestial steps outside of Earth. In Toulouse, France, the Concorde 001’s first test flight went supersonic. The Women’s Movement was having a revitalization, and the New York City Stonewall Riots served as a catalyst for the gay rights movement. Musical greats like Janis Joplin, Joan Baez, Joe Cocker, Jimi Hendrix, Jefferson Airplane, and Creedence Clearwater Revival performed in front of a scantily clad, largely intoxicated audience of about 400,000 peace-loving hippies on a Bethel New York dairy farm. Mickey Mantle, “The Commerce Comet,” announced his retirement from professional baseball, and the Minnesota Vikings won the National NFL Championship. Sesame Street debuted and would teach generations of children how to count in a Transylvania-like accent (courtesy of “Count von Count”). The United Kingdom abolished the death penalty; Golda Meir was elected the world’s fourth and Israel’s only woman to hold the office of Prime Minister. Back in the United States, a young Ronald Reagan (then Governor of California) signed the Family Law Act, the first no-fault divorce legislation in America – and what Regan, years later, reportedly told his son Michael was his “greatest regret” in public life.

Prior to the advent of no-fault divorce, parties could only be granted a divorce upon demonstrating one or more limited fault grounds. In America, those grounds varied among the states, most of which were codified soon after independence, around the late 1700s. Connecticut’s divorce statutes were among the most liberal, allowing divorce for “…adultery, fraudulent contract, desertion for three years, or prolonged absence with a presumption of death.” By 1843, Connecticut had added habitual drunkenness and intolerable cruelty as additional grounds for divorce. Across the country, California’s first divorce law (established in 1851), included grounds of impotence, adultery, extreme cruelty, desertion or neglect, habitual intemperance, fraud, and felony.

The Fault in No-Fault Divorce 

The new no-fault divorce laws were intended to eliminate the fabrication of fault claims often made by spouses wanting to break marital bonds – not because of any infidelity, abuse, or other wrongful conduct, but because they were simply unhappy. There was also in the crafting of this new legislation the hope that it would minimize contention and costs often associated with protracted fault-based divorce litigation. Opponents to the new law were concerned that it would promote marital dissolution, make it easier to sever vows exchanged before God, emasculate an institution that safeguarded children, and erode society’s moral fabric.

No-fault divorce classically exemplifies the trend away from moral discourse in family law. Before that reform, ‘a court discussed a petition for divorce in moral terms; after no-fault divorce, such a petition did not have to be discussed in moral terms.’ …. [A] petition for divorce now does not need to be discussed in any terms at all, since the moral decision of whether to seek a divorce has been transferred to the husband and wife.

In Georgia, where I practice family law, it wasn’t until 1973 that the General Assembly added a no-fault ground for divorce: “Irretrievably Broken Marriage,” which is “interpreted as meaning that the marriage became irretrievably broken through no fault of either party.” Georgia’s courts viewed marriages that were “irretrievably broken” as those “where either or both parties are unable or refuse to cohabit and there are no prospects for a reconciliation.”

No-Fault Divorce is Often Accompanied by Allegations of Bad Behavior/Wrongdoing

It sounds straightforward, but there is a common misconception that a no-fault divorce is equivalent to an “uncontested divorce” or that allegations of wrongdoing never enter “no-fault divorce” proceedings. A divorce is only “uncontested” if all the underlying issues are undisputed (e.g., division of property, alimony, custody, dissolution, etc.). As for wrongdoing, it is common to see, at some point during the divorce process, allegations of bad behavior raise their ugly (even downright malevolent) heads – whether in mediation, at a temporary hearing, during a custody evaluation, guardian ad litem investigation, in a witness affidavit, even at trial.

While those who experience divorce do not handle it in some monolithic, George Orwellian way, there are some common responses. Divorcing spouses tend to view the dissolution of the marriage as a failure and are eager to assign blame for that failure. When one of the parties suffers from a personality disorder, particularly those in which he or she avoids accountability, lacks empathy, and finds solace in blaming and shaming others, even a no-fault divorce can escalate into a toxic, adversarial, and almost impossible to resolve process.

Even if divorcing spouses are both rational and determined to resolve their no-fault divorce in a collaborative manner, it is not unusual for conduct issues (bad behaviors) to arise when attempting to resolve legal issues in which conduct is a relevant, equitable consideration. For example, in Georgia, conduct is relevant factor in determining the equitable division of assets and debts, as well as an equitable consideration in the determination of alimony. In fact, in Georgia, if adultery is the cause of the breakup of the parties’ marriage, it bars an award of alimony (unless there is “condonation,” meaning the non-cheating spouse forgave the adultery and resumed marital relations with his or her spouse).

Child Custody in a No-Fault Divorce

With regard to custody of children, the Court is also authorized to consider a megillah of factors that include, as examples, the capacity of each parent to give the child love, affection, and guidance and to continue the child’s education and rearing. In other words, demonstrating a lack of such capacity might require a parent to delve into allegations of his or her spouse’s mental health challenges, illegal drug use, habitual intoxication, or anger management issues (e.g., wrongful conduct), even in a “no-fault” divorce.

A Long Tradition of Blaming Others

In Genesis, God asks Adam, “Have you eaten from the tree from which I commanded you not to eat?” Adam answers, “The woman whom You gave me, she gave me fruit from the tree, and I ate it.” When God asks Eve, “What is this you have done?” Eve answers, “The serpent deceived me, and I ate.”

Blame is not a new concept, and in divorce, whether brought on fault or no-fault grounds, it is often wielded like a wayward katana, an attempt (however misguided) to minimize accountability, alleviate grief, and self-preserve.

Rachel has been practicing family law in the greater Atlanta, Georgia area for almost 26 years. Her primary practice involves divorce and custody litigation; however, she is a trained mediator, arbitrator, guardian ad litem, and regularly serves as a child advocate in dependency (juvenile) proceedings. www.elovitzfamilylaw.com