No-Fault Divorce and Modern Marriage

No-fault divorce began in California. The state’s Family Law Act of 1969 was signed into law by Governor Ronald Reagan, and took effect in 1970. With no fault divorce, the spouse asking for a divorce does not have to prove that the other spouse did something wrong. Before this law was passed, fault had often been required for a divorce and each state had its own grounds for a fault divorce. To end a marriage, one party must have done something that would cause the other person to want a divorce. After California passed America’s first no-fault law, it became much easier to end a marriage and almost overnight, the divorce rate skyrocketed. One by one, states began adopting no fault laws and today, all 50 have no fault laws in place.

Divorce is problematic in many ways, particularly when one spouse does not wish it. It generally lowers the standard of living of the spouse in the weaker financial position. Many times  it is the wife, who might have put her career on hold to raise children. Other problems arise when one parent wants to move away and take the children, while the other parent is linked to a career or family in the current city. There are times when some spouses find child rearing to be too much of a burden on their personal freedom or their career, and they may just simply walk away, leaving the other parent to deal with all the issues of raising children alone.

Supporters said the law would do away with lengthy trials—reducing acrimony, containing costs and sparing people additional emotional pain. However, the reality is that very little has changed. When children are involved, couples tend 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. This eventually leads down the same path we once had. Growing up in a two-parent home has its advantages, and there should be a higher standard and more barriers to divorce, at least among parents. 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. Either way, I feel no-fault laws need a closer examination.

No-fault divorce takes away a spouse’s bargaining chips when the other spouse decides they want out. I was fortunate to have had the old laws on the books when I went through my divorce.  Before August of 2010,  New York was the only state without no- fault divorce. Spouses disagreed on terms of a divorce couldn’t dissolve their marriage unless one proved the other committed an act such as cruelty, adultery or abandonment.

My ex wanted to break up the family – I didn’t. She used the grounds of ‘constructive abandonment.’ This meant that I supposedly withheld sex from her for over a year. She knew that was impossible to prove and was totally untrue. If we had gone to trial, she might have committed perjury based on false claims she made on her sworn deposition. We eventually settled, but I was determined to take my case to trial to prove my innocence. I have always been a dedicated father and I was determined to not let my ex wife separate me from our children simply because she wanted out. When a spouse didn’t want to divorce for religious or other reasons, the threat of a trial airing marital disputes or proving the allegations of fault, might be used as a negotiating tactic paving the way for better settlement terms, he said.

 If no fault laws were not on the books at the time of my divorce, she might have walked out, taken the kids, I would have been forced to pay child support, spousal support. I would not have had the ability to  prove in a court of law that I was not at fault for the decision to end our marriage. I would have have had a much harder fight to reverse all of those events.  In the end, none of that happened. I stopped her from kicking me out the marital home, taking the kids away from me and in the end, I pay her nothing. She was eventually going to be forced to PROVE that I breeched the contract. She knew she could never accomplish that, she was forced into a settlement. In the end, our settlement was in the best interests of the children, my ex and myself.

 If one spouse has to prove that the other breeched the marital contract, it is much, much harder to walk away without being held accountable.

Maggie Gallagher wrote :

What have we gotten in exchange for this sweeping abandonment of the idea that marriage is a public, legal commitment, and not merely a private exchange of sentimental wishes? When in the 1970s and early 1980s no-fault divorce swept through state legislatures, its advocates promised us two great benefits: (1) no-fault would reduce conflict, as spouses would no longer be forced to assign legal blame for the marriage’s end, and (2) no-fault would enhance respect for the law, as couples longing for a divorce would no longer have to commit perjury, lodge false accusations of adultery, to get one.
In this sense, as Herbert Jacob points out in his excellent history, Silent Revolution, no-fault divorce was the brainchild of elites who consistently portrayed it as a mere technical adjustment to the law, a minor change that would in no way endanger marriage or encourage divorce, but merely close the gap between the law in theory and the law as it was actually practiced.

In reality no-fault divorce laws did something decidedly more revolutionary. Rather than transferring to the couple the right to decide when a divorce is justified, no-fault laws transferred that right to the individual. No-fault is thus something of a misnomer; a more accurate term would be unilateral divorce on demand.

Why do we tolerate unilateral divorce, where the power rests in one person’s hands to vote on behalf of the whole family? Correct me if I’m wrong, but doesn’t the fact that a spouse has the ability call it quits without the other’s consent raise questions concerning the vows that are taken during the wedding ceremony and the institution of marriage itself. With no fault divorce, is your marriage really secure? At any time, your spouse can just pick up and leave. Just think about that for a minute. It makes you wonder if there is any real security in a marriage.

I question the difference between contract law and no fault divorce law from time to time. The only time people generally notice that marriage is a contract is when they are being sued for divorce in civil court. It appears that the marriage contract is less enforceable and less consequential than the ordinary business contract.

There are all kinds of reasons why people want to end marriages. If a spouse wants to walk away from their agreement, I say let them go. The other party should never be financially damaged or destitute.

In many instances, the spouse who earns the least, ends up leaving the marriage financially damaged. Think about the wife who stayed at home to raise children who’s husband decides to leave. She is left  in an inferior financial position, may receive child support payments to supplement any future income that she may get and might even receive spousal support for a short period of time. Many times, she is on her own her own dealing with the rearing of the children.  On the other hand, a father who loves his children is now reduced to a ‘visitor’ simply because the wife wanted out. His relationship with his children is damaged permanently due to ‘no fault’ of his own.  Under no-fault divorce laws, a wife who wants out is not held responsible for breaking up the family.

Lets look at what a contract really is. A contract is legally binding, which means the law provides a remedy in the event the contract is not fulfilled. When one party fails to perform any term of a contract without a legitimate legal excuse, the contract has been breached. There will be legal remedies, most commonly monetary compensation, awarded the injured party to the contract.

 Marriage is a legally binding contract. A marriage agreement is a legal contact, just like any other type of contract such as the contract you might have with a landlord or a business partner. You buy a marriage license from the state when you enter into the contract. When you enter into a marriage, you have a written contract (a marriage license) and a verbal contract (your wedding vows).

In a marriage contract, you also have all the requirements of a legal contract.  If we applied the same standards to matrimonial law, the party breaching the marital contract would be sanctioned. The party left behind would not be left to suffer any financial repercussions. Any party breaching the marital contract due to infidelity would not be able to collect alimony or other compensation. There is no long drawn out divorce settlement negotiation since the person breaching the contract would no longer have any right to marital assets.

I say, if a spouse wants to leave the marriage because of their own issues like ‘falling out of love’, ‘finding themselves’, or any one of a number of frivolous excuses for terminating a partnership, I say GO! Leave the spouse who wants to stay married in the good financial position and go find yourself.

It appears that no-fault divorce laws concern themselves with the rights of one person, not the family. Contract law seems to favor the rights of the party who stands by the contract over the rights of the person who breaches the contract. Why is divorce, which is essentially the dissolution of a marriage contract, not treated the same as the dissolution of a contract between companies?

When will people understand that marriage is not to be taken lightly? Why do we spend more time agonizing over the decision to purchase a home, where to live, how to search and find a job, or even planning for your wedding, than doing the work it takes to understand what you are actually getting into when you marry someone? I suggest we rethink marriage and make it as important as it is. Throughout history, humans have valued marriage and have it as one of the foundations of a healthy prosperous society. We are social animals and live for lifetimes of partnership.  Can we make marriage important enough to be viewed as a legally binding contract by the court? Family laws should express a special interest in encouraging, supporting and protecting the marital contract, the relationship of the parties to the marriage and the children born of the marriage.

Is the question not how divorce law and contract law differ, but why isn’t a marriage contract as enforceable as any other contract under law?

My suggestion to anyone getting married is to do some real thought and try to understand what you are getting into. A prenuptial agreement is a MUST.  I also believe that matrimonial laws must be reformed. When a couple wants a divorce without children, it is sad, tough and painful. When there is a divorce with children, it is devastating. Not only for the parents, but for the children involved. Their lives are forever scarred.  Maybe there can be more reasonable controls on unilateral and involuntary divorce when children are in the picture.

The essential point of fault is to make sure that a spouse is held accountable for their actions and misconduct and is not allowed to escape the consequences of their actions or behavior. Are there not laws that require the enforcement of business contracts? No fault laws essentially allows one party to not adhere to the principles of the marital contract. Wouldn’t it be beneficial to the public interest to maintain family stability?

In order to decrease the incidences of divorce, I feel we all need to examine what marriage really means in the new millennium. What do people expect from a spouse? How we can better inform people of what commitment in a marriage represents? Is there a better way of informing people of the benefits and pitfalls of a lifelong partnership BEFORE they are actually issued the license?

I think that a better understanding and a further examination of the meaning of marriage will help bring some stability to the institution and to our society.

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