Forty Years On, No-Fault Divorce Faces Scrutiny

Before no-fault divorce became common, one spouse would have to allege a particular reason for the divorce (even if both spouses wanted the divorce), such as adultery or cruelty. This led to couples fabricating grounds for their divorce. Such fabrication is itself perjury, so lawmakers nationwide saw no-fault divorce as a more honest approach to divorce proceedings.

January 1 was also the 34th anniversary of no-fault divorce in Massachusetts, which our laws define as an “irretrievable breakdown of the marriage.” However, many people don’t realize that “fault” divorce is still an option under Massachusetts law. In fact, irretrievable breakdown of the marriage appears in the law next to the traditional grounds for fault divorce, such as adultery, desertion, or cruel and abusive treatment.

Although it is now commonplace, no-fault divorce is not without its critics. A bill now before the Michigan Senate attempts to remove no-fault divorce from the options available for couples with children, or those couples in which one spouse does not consent to the divorce.

Benefits of No-Fault Divorce
In addition to the avoidance of perjury mentioned above, no-fault divorce is seen as less demeaning and demoralizing to both spouses. There is no need under a no-fault divorce to establish that the other party has done anything wrong, and this allows the spouses to protect their reputations. Presumably neither side will be accused of wrongdoing, nor will either spouse feel any compunction from unfairly demonizing the other.

Many people feel that these positive aspects of no-fault divorce are even more important when the couple has children. Even if one party may be more to blame for the divorce, no-fault divorce allows the children to maintain good relationships with both parents and not grow up thinking that one parent has bad character.

However, even under no-fault divorce, things may turn acrimonious when children are involved. The primary consideration in child custody is the best interests of the child; this may force the couple to take adversarial roles to demonstrate that the other is not as fit to be a parent. Thus even a supposedly non-adversarial approach can quickly pit one spouse against the other.

Problems with No-Fault Divorce
Critics of no-fault divorce say it may make divorce a little too easy. Growing up in a two-parent home has its advantages, and thus there may also be advantages to a system which puts up some barriers to divorce, at least among parents.

Divorce is problematic in many ways, particularly when one spouse does not wish it. First, it generally lowers the standard of living of the spouse in the weaker financial position. Often this is the wife, who has put her career on hold to raise children. Another problem occurs when one parent wants to move away and take the kids, while the other parent is tied to a job or family in the present city. The other side of this same coin is that some spouses find parenting to be too much of a burden on their freedom or their career, and may simply walk away, leaving the other parent to cope with all the child rearing duties alone.

All of the preceding examples concern divorcing parents, and that is where most of the criticism regarding no-fault divorce is focused. But even for non-parents, fault divorce may be attractive, because some people simply want the record to show that the other spouse is the one responsible for the failure of the marriage.

Divorce Past, Present, and Future
One of the principal outcomes of the no-fault divorce is that today, if one spouse wants a divorce but the other spouse does not, there isn’t much the resistant spouse can do to prevent it. Years ago when fault divorce was commonplace, some divorces were simply not approved by the court because the other spouse offered a valid defense to the accusation of fault.

Besides the efforts in Michigan to eliminate some forms of no-fault divorce, three states have established a second form of marriage, called a covenant marriage, which makes divorce more difficult to obtain. In 1997 Louisiana became the first state to establish covenant marriage, followed by Arizona and Arkansas.

Under covenant marriage, the couple agrees to pre-marital counseling and accepts fewer grounds for divorce. (Domestic violence and adultery, for example, are still valid grounds.) Even with these barriers in place though, the couple could still obtain a divorce in another state which does not recognize covenant marriages.

Although the no-fault divorce caught on rapidly in the U.S. in the last 40 years, the efforts by state lawmakers in Michigan, Louisiana, Arizona, and Arkansas to make divorce more difficult to obtain may reflect a growing concern over high divorce rates, and point to a growing trend. No-fault divorce may face increased scrutiny both in Massachusetts and throughout the country.

In the meantime, traditional grounds for divorce are still available, and an experienced family law attorney can help you determine the best course of action if you’re contemplating divorce.