Legal Affairs
space


Current Issue

 
 
 
 


space space space
space
Divorcing Fact from Fiction

Even the best judge may not be able to tell when a marriage is over.
Finding Fault With No-Fault Divorce?

See what Justin Wolfers and Katherine Spaht have to say in a debate related to this paper.

Thirty years after no-fault divorce took hold in this country, we have the benefit of hindsight, aided by data, about its effects on divorce rates and on the legal system. At the time of the so-called divorce revolution, though, scholars could only speculate—all they knew was that the system needed to change. In a 1971 law review article, one University of Colorado professor assessed the motivations and possibilities for reform in light of California's move to no-fault divorce. The professor's conclusion was that California had not gone far enough.

California's misleadingly named "no-fault" divorce still possessed the trappings of a fault-based regime, argued Homer Clark in the University of Colorado Law Review. Under California's law, Clark stated, judges were required to find that a marriage had broken down irretrievably—even if both spouses agreed to divorce, or even if one was seen as "guilty" and the other "innocent." The marriage breakdown standard, Clark claimed, was really just a thin veil for vesting total discretion in the judge. The result, he said, was trials for divorces that didn't require trials, on issues that no judge was capable of judging.

Instead, Clark asserted, states needed to recognize that "fault" and statutory grounds for divorce were not in reality psychologically relevant to the status of a marriage, and that married couples seeking a divorce would find ways around the rules. We end up with a system where divorce is granted once the parties agree to it, no matter what system we set up. So wouldn't it be better—more efficient, less hypocritical, and less humiliating to the parties—to let people seeking divorces keep the negotiations out of the courtroom? California's then-new rules were a step in the right direction, but not a complete solution. The three and a half decades since Clark's article have seen a system of divorce mediations and outside negotiations crop up in no-fault states, like California, with little judicial interference.

Clark was prescient in another way: He also proposed that states grant a divorce after a stipulated and reasonable separation period. New York, the only state that has not introduced no-fault divorce, has such a provision in its family law allowing parties who have been separated for a year to obtain a divorce. This way, the state doesn't have to admit that a marriage is terminated by consent, rather than by a judge, and the parties can still get the result they want without having to engage in the fiction of a fault-based system. University of Colorado Law Review, Vol. 42, pg. 403.

space space space












space
Donate Where to Buy About Us