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. http://bit.ly/16zwKB
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?