Rethinking no-fault divorce

Lex just read an interesting article by W. Bradford Wilcox published in National Affairs. The article, “The Evolution of Divorce,” examines how divorce has evolved since the concept of no-fault divorce emerged.

Wilcox persuasively argues that divorce, as it has evolved since the advent of no fault laws in the 1970s, has disproportionately affected poor and working class communities.  He calls for divorce reform including rethinking notions of  fault.

Wilcox recommends allowing courts to consider the behavior of spouses in its decisions concerning alimony and property division. This would arguably act as a deterrent against such behavior.

Other than possibly prolonging litigation while people attempt to argue their respective culpability, consideration of fault makes sense.

First, no-fault divorce is counterintuitive to litigants.  It denies the intense feelings of loss and betrayal that people frequently feel when their spouses violate their vows.  Shouldn’t they be allowed a controlled forum to express this sense of loss?  Why shouldn’t a court be able to consider an extramarital affair, especially in a short marriage, when it is determining issues of alimony or division of property?  Is it implicitly improper to reward or punish someone for their behavior in divorce court? Lex doesn’t think so.

I started my career long after the fault debate was resolved in favor of no fault. But as the world turns and the awful results of “casual divorce” play out, it might be time to rethink this issue. Any thoughts?


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One response to “Rethinking no-fault divorce

  1. Paul Nunes

    Oh Lex, just think how much more exiting those courtrooms would be if we try to determine who cheated on whom.
    I agree with you though. If your union produced a child, your exit from that relationship through divorce should be held to a higher standard. The author’s remarks are right on the money.
    BTW, fault based divorce is still alive in our neighbors to the north although I don’t know how well it’s doing. Canada also factors in spousal conduct with regard to child custody decisions. Most Canadians opt for the one-year separation as grounds for divorce which loosely equates to irreconcilable differences and is largely reported on the honor system. Nobody has to prove they were actually separated for one year.
    The article you reference is very informative. One notable omission is his conclusion surrounding the church’s more accommodating position toward divorce. The Catholic Church for example does not recognize the second union if the divorced parent remarries however, the process for receiving a declaration of invalidity (annulment) has improved over the years. I think it has a lot to do with keeping people in the faith and returning to church after the divorce.
    Keep the wheels turning Lex.… the late night reading is keeping me sharp for my next court date.

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