No-fault divorce
Encyclopedia
No-fault divorce is a divorce
in which the dissolution of a marriage requires neither a showing of wrong-doing of either party nor any evidentiary proceedings at all. Laws providing for no-fault divorce allow a family court
to grant a divorce in response to a petition by either party to the marriage, without requiring the petitioner to provide evidence that the respondent has committed a breach of the marital contract. Laws providing for no-fault divorce also limit the potential legal defenses of a respondent who would prefer to remain married.
. Before the Revolution, churches, mosques, and synagogues defined family life. It was the ecclesiastical law of the various denominations that controlled the family, marriage, and divorce. For example, the official registration of birth, death, marriage, and divorce was the responsibility of the church parish. Under these non-secular laws, divorce was highly restricted (though never completely unavailable, as no major religion in Russia completely disallowed divorce).
The 1918 Decree on Divorce eliminated the religious marriage and the underlying ecclesiastical law, by replacing them with civil marriage sanctioned by the state. Divorce was obtained by filing a mutual consent document with the Russian Registry Office, or by the unilateral request of one party to the court. The divorce law under the Bolsheviks did not penalize the husband with alimony
, child support
, or debtor's prison
for non-payment. The two partners were entirely free of legal obligations to each other after divorce.
was further amended to permit divorce after one year's separation, with no requirement to prove "fault" by either spouse.
"No-fault" divorce in the United States
originated in the state of California
effective January 1, 1970. At that time, lawyers and judge
s objected to the legal fiction
s used to bypass statutory requirements for obtaining a divorce, which had become more commonplace since the mid-20th century. In August of 2010, New York
's governor, David Paterson
, signed "no-fault" divorce into law, and since October 15th, 2010 no-fault divorce has been legal in all 50 U.S. states, and the District of Columbia.
(essentially an accusation of "so did you"). A judge could find that the respondent had not committed the alleged act or the judge could accept the defense of recrimination and find both spouses at fault for the dysfunctional nature of their marriage.
In some states, requirements were even more stringent. For instance, under its original (1819) constitution, Alabama
required not only the consent of a court of chancery
for a divorce (and only "in cases provided for by law"), but equally that of two-thirds of both houses of the state legislature. This requirement was dropped in 1861, when the state adopted a new constitution at the outset of the American Civil War
. The required vote in this case was even stricter than that required to overturn the governor's veto in Alabama, which required only a simple majority of both houses of the General Assembly.
). The husband would admit a similar version of those facts. The judge would convict the husband of adultery, and the couple could be divorced.
In many other states, especially California, the most popular allegation for divorce was cruelty (which was then unavailable in New York). For example, in 1950, wives pleaded "cruelty" as the basis for 70 percent of San Francisco divorce cases. Wives would regularly testify to the same pitiful (and usually false) facts: their husbands swore at them, hit them, and generally treated them terribly.
This procedure was described by California Supreme Court justice Stanley Mosk
:
In addition, advocates for no-fault divorce argued that the law should be changed to provide a straightforward procedure for ending a marriage, rather than forcing a couple who simply couldn't get along to choose between living together in "marital hell" or lying under oath in open court. The most prominent advocate of this position was feminist law professor Herma Hill Kay (who later became dean of UC Berkeley School of Law).
At its convention in 1947, the National Association of Women Lawyers (NAWL) voted to draft and promote a bill that would embody the ideal of no-fault divorce and describes its efforts to promote the passage of no-fault divorce laws as "the greatest project NAWL has ever undertaken."
when Governor Ronald Reagan
signed into law the Family Law Act of 1969 on September 4, 1969 (effective January 1, 1970). The Act abolished California's common law action for divorce and replaced it with the proceeding for dissolution of marriage on the grounds of irreconcilable differences. The grounds of irreconcilable differences were accepted as true, based on the assertions of one of the parties to the marriage, and thus the Family Law Act of 1969 eliminated the showing-of-fault requirements to obtain a divorce both for spouses seeking a divorce by mutual consent, and in cases where only one of the parties to the marriage wants a divorce.
's Family Law Section was asked to appoint a committee to work with the committee from the NCCUSL. The initial draft of the Uniform Marriage and Divorce Law written by the NCCUSL committee would direct judges to grant the petitioner's request to end the marriage if the judge found that the marriage was "irretrievably broken", a term which this draft did not define. Because the term "irretrievably broken" was not defined, the committee from the American Bar Association (ABA) Family Law Section disapproved of this draft of the Uniform Marriage and Divorce Act. In response, the NCCUSL committee added a 180-day separation requirement in order for judges to find that the marriage had been irretrievably broken. However, the NCCUSL committee also added language to allow judges to grant a petitioner a divorce if "there is serious marital discord adversely affecting one or both parties toward the marriage."
The committee from the ABA Family Law Section objected to the ability of a petitioner to avoid the 180-day separation requirement by asserting "serious marital discord." In his letter recommending that the American Bar Association House of Delegates not approve the amended draft proposed by the NCCUSL, Arnold J. Gibbs, the chairman of the ABA Family Law Section, stated that the NCCUSL proposed draft created a rubber stamp type of divorce procedure. Mr. Gibbs wrote the following:
Copies of the recommendation to disapprove the NCCUSL's amended draft were provided to the National Conference of Commissioners of Uniform State Laws (NCCUSL), Young Lawyers Section and the National Association of Women Lawyers (NAWL). The committee from the NCCUSL refused to further amend its draft of the Uniform Marriage and Divorce Act.
At the 1974 midwinter meeting of the American Bar Association in Houston, Council members of the Family Law Section indicated dissatisfaction with the public image the section was getting from its opposition to the NCCUSL's draft of the Uniform Marriage and Divorce Act. In a policy statement the ABA Family Law Section chose to recognize separation only as conclusive evidence of marital breakdown and not as an unbending test, implying that other evidence to establish marital breakdown would be admissible."
and New York
had adopted some form of no-fault divorce (although some forms were not as easy to obtain as that in California). South Dakota adopted no-fault divorce in 1985. Until August 2010, New York still lacked a unilateral "no-fault" divorce statute; under New York divorce law
only if both parties notarized a separation agreement
and lived separately for one year, could a judge convert it into a divorce. New York governor David Paterson
signed a no-fault divorce bill on August 15, 2010. As of October 2010, no-fault divorce is allowed in all fifty states and the District of Columbia.
In August 2000, Attorney Ed Truncellito filed suit against the State Bar of Texas, alleging the no-fault law in Texas was misapplied because he asserts that the legislative history of no-fault divorce law in Texas makes it clear that the law was meant for uncontested cases only.
, which established "no-fault" divorce in Australia. Since 1975, a divorcing couple need only establish a twelve month separation; they need not show either party is at "fault" for the divorce to be granted by the Family Court of Australia
. However, a residual "fault" element remains in relation to child custody
and property settlement issues.
Stephanie Coontz
, a professor of history at Evergreen State College, states that "in the years since no-fault divorce became well-nigh universal, the national divorce rate has fallen, from about 23 divorces per 1,000 married couples in 1979 to under 17 per 1,000 in 2005." She also states that before no-fault divorce was legalized, "Expensive litigation strained court resources" and that "once you permit the courts to determine when a person’s desire to leave is legitimate, you open the way to arbitrary decisions about what is or should be tolerable in a relationship, made by people who have no stake in the actual lives being lived."
Lawyer L.M. Fenton states "Feminist holdouts against New York's new bill [which allows no-fault divorce] don't understand how family law affects women today," adding "It also mystifies me that spouses could still, even in 2010, be forced to stay married to someone who refused to let go." She further states that, "Fault-based grounds usually include mental cruelty, but true mental cruelty has a psychological component that can make it very difficult for the abused spouse to articulate that abuse. More to the point, the abused spouse may be terrified to describe the relationship on paper and testify about it in a court. And of course, a controlling partner will always choose the path of most resistance to whatever it is that the other spouse wants."
A 2010 New York Times editorial states that "New York is the only state where a court must find fault before granting a divorce unless the spouses have lived apart for a full year under a formal separation agreement — a proven formula for inviting false testimony, endless litigation and generally making divorce far more painful than it needs to be ." New York has since legalized no-fault divorce.
, vice president and director of policy Independent Women's Forum
, has stated that "no fault divorce... makes the marriage contract effectively no contract at all". She has also stated, "People wonder why marriage as an institution is in trouble. One reason could be that the legal system has devalued the marriage contract and made marriage a less attractive institution."
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
in which the dissolution of a marriage requires neither a showing of wrong-doing of either party nor any evidentiary proceedings at all. Laws providing for no-fault divorce allow a family court
Family court
A family court is a court convened to decide matters and make orders in relation to family law, such as custody of children. In common-law jurisdictions "family courts" are statutory creations primarily dealing with equitable matters devolved from a court of inherent jurisdiction, such as a...
to grant a divorce in response to a petition by either party to the marriage, without requiring the petitioner to provide evidence that the respondent has committed a breach of the marital contract. Laws providing for no-fault divorce also limit the potential legal defenses of a respondent who would prefer to remain married.
Russian history
No-fault divorce was pioneered by the Bolsheviks following the Russian Revolution of 1917Russian Revolution of 1917
The Russian Revolution is the collective term for a series of revolutions in Russia in 1917, which destroyed the Tsarist autocracy and led to the creation of the Soviet Union. The Tsar was deposed and replaced by a provisional government in the first revolution of February 1917...
. Before the Revolution, churches, mosques, and synagogues defined family life. It was the ecclesiastical law of the various denominations that controlled the family, marriage, and divorce. For example, the official registration of birth, death, marriage, and divorce was the responsibility of the church parish. Under these non-secular laws, divorce was highly restricted (though never completely unavailable, as no major religion in Russia completely disallowed divorce).
The 1918 Decree on Divorce eliminated the religious marriage and the underlying ecclesiastical law, by replacing them with civil marriage sanctioned by the state. Divorce was obtained by filing a mutual consent document with the Russian Registry Office, or by the unilateral request of one party to the court. The divorce law under the Bolsheviks did not penalize the husband with alimony
Alimony
Alimony is a U.S. term denoting a legal obligation to provide financial support to one's spouse from the other spouse after marital separation or from the ex-spouse upon divorce...
, child support
Child support
In family law and public policy, child support is an ongoing, periodic payment made by a parent for the financial benefit of a child following the end of a marriage or other relationship...
, or debtor's prison
Debtor's prison
A debtors' prison is a prison for those who are unable to pay a debt.Prior to the mid 19th century debtors' prisons were a common way to deal with unpaid debt.-Debt bondage in ancient Greece and Rome:...
for non-payment. The two partners were entirely free of legal obligations to each other after divorce.
Canadian history
Prior to 1968, the only grounds for divorce were adultery or cruelty. However, in 1968, the Divorce Act was amended to permit divorce for other reasons, including adultery, physical and mental cruelty and separation for at least 3 years. In 1986, the Divorce ActDivorce Act
Canada's Divorce Act is the federal Act that governs divorce in that country. The Constitution of Canada has explicitly made marriage and divorce the realm of the federal government rather than of the provinces....
was further amended to permit divorce after one year's separation, with no requirement to prove "fault" by either spouse.
United States history
- See also: Divorce in the United StatesDivorce in the United StatesLike marriage, divorce in the United States is the province of the state governments, not the federal government. Divorce or "dissolution of marriage" is a legal process in which a judge or other authority dissolves the bonds of matrimony existing between two persons, thus restoring them to the...
"No-fault" divorce in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
originated in the state of California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
effective January 1, 1970. At that time, lawyers and judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
s objected to the legal fiction
Legal fiction
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...
s used to bypass statutory requirements for obtaining a divorce, which had become more commonplace since the mid-20th century. In August of 2010, New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
's governor, David Paterson
David Paterson
David Alexander Paterson is an American politician who served as the 55th Governor of New York, from 2008 to 2010. During his tenure he was the first governor of New York of African American heritage and also the second legally blind governor of any U.S. state after Bob C. Riley, who was Acting...
, signed "no-fault" divorce into law, and since October 15th, 2010 no-fault divorce has been legal in all 50 U.S. states, and the District of Columbia.
Requirements for divorce prior to the enactment of no-fault divorce
Prior to the no-fault divorce revolution, a divorce could be obtained only through a showing of fault of one of the parties in a marriage. This was something more than not loving one another; it meant that one spouse had to plead that the other had committed adultery, abandonment, felony, or other similarly culpable acts. However, the other spouse could plead a variety of defenses, like recriminationRecrimination
In law, recrimination is a defense in an action for divorce in which the accused party makes a similar accusation against the plaintiff. In plain English, it is a lawyer's way of saying "you too."...
(essentially an accusation of "so did you"). A judge could find that the respondent had not committed the alleged act or the judge could accept the defense of recrimination and find both spouses at fault for the dysfunctional nature of their marriage.
In some states, requirements were even more stringent. For instance, under its original (1819) constitution, Alabama
Alabama
Alabama is a state located in the southeastern region of the United States. It is bordered by Tennessee to the north, Georgia to the east, Florida and the Gulf of Mexico to the south, and Mississippi to the west. Alabama ranks 30th in total land area and ranks second in the size of its inland...
required not only the consent of a court of chancery
Chancery
Chancery may refer to:* Chancery , the building that houses a diplomatic mission, such as an embassy* Chancery , a medieval writing office* Chancery , in Ceredigion, Wales...
for a divorce (and only "in cases provided for by law"), but equally that of two-thirds of both houses of the state legislature. This requirement was dropped in 1861, when the state adopted a new constitution at the outset of the American Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
. The required vote in this case was even stricter than that required to overturn the governor's veto in Alabama, which required only a simple majority of both houses of the General Assembly.
Methods for bypassing the showing-of-fault requirements for divorce
These requirements could be problematic if both spouses were at fault or if neither spouse had committed a legally culpable act but both spouses desired a divorce by mutual consent. Lawyers began to advise their clients on how to create legal fictions to bypass the statutory requirements. One method popular in New York was referred to as "collusive adultery", in which both sides deliberately agreed that the wife would come home at a certain time and discover her husband committing adultery with a "mistress" obtained for the occasion. The wife would then falsely swear to a carefully tailored version of these facts in court (thereby committing perjuryPerjury
Perjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the witness falsely promises to tell the truth about matters which affect the outcome of the...
). The husband would admit a similar version of those facts. The judge would convict the husband of adultery, and the couple could be divorced.
In many other states, especially California, the most popular allegation for divorce was cruelty (which was then unavailable in New York). For example, in 1950, wives pleaded "cruelty" as the basis for 70 percent of San Francisco divorce cases. Wives would regularly testify to the same pitiful (and usually false) facts: their husbands swore at them, hit them, and generally treated them terribly.
This procedure was described by California Supreme Court justice Stanley Mosk
Stanley Mosk
Stanley Mosk was an Associate Justice of the California Supreme Court for 37 years , and holds the record for the longest-serving justice on that court. Before sitting on the Supreme Court, he served as Attorney General of California and as a trial court judge, among other governmental positions...
:
- Every day, in every superior court in the state, the same melancholy charade was played: the "innocent" spouse, generally the wife, would take the stand and, to the accompanying cacophony of sobbing and nose-blowing, testify under the deft guidance of an attorney to the spousal conduct that she deemed "cruel."
Advocates for eliminating the showing-of-fault requirements for divorce
Some lawyers and judges objected to the legal fictions used to satisfy the requirements for divorce and felt that they made oaths meaningless and threatened to hamper the integrity of the American justice system by making perjury into a commonplace occurrence. As early as the 1930s, a treatise on American family law included the following:- In divorce litigation it is well known that the parties often seek to evade the statutory limitations and thus there is great danger of perjury, collusion, and fraud . . . . In many cases no defense is interposed, and often when the case is contested the contest is not waged with vigor or good faith.
In addition, advocates for no-fault divorce argued that the law should be changed to provide a straightforward procedure for ending a marriage, rather than forcing a couple who simply couldn't get along to choose between living together in "marital hell" or lying under oath in open court. The most prominent advocate of this position was feminist law professor Herma Hill Kay (who later became dean of UC Berkeley School of Law).
At its convention in 1947, the National Association of Women Lawyers (NAWL) voted to draft and promote a bill that would embody the ideal of no-fault divorce and describes its efforts to promote the passage of no-fault divorce laws as "the greatest project NAWL has ever undertaken."
California's Family Law Act of 1969
"No-fault" divorce was pioneered in the United States by the state of CaliforniaCalifornia
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
when Governor Ronald Reagan
Ronald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....
signed into law the Family Law Act of 1969 on September 4, 1969 (effective January 1, 1970). The Act abolished California's common law action for divorce and replaced it with the proceeding for dissolution of marriage on the grounds of irreconcilable differences. The grounds of irreconcilable differences were accepted as true, based on the assertions of one of the parties to the marriage, and thus the Family Law Act of 1969 eliminated the showing-of-fault requirements to obtain a divorce both for spouses seeking a divorce by mutual consent, and in cases where only one of the parties to the marriage wants a divorce.
The Uniform Marriage and Divorce Act
At about the same time that California adopted "no-fault" divorce, the National Conference of Commissioners of Uniform State Laws (NCCUSL) appointed a committee to draft a uniform marriage and divorce law for consideration by state legislatures, and the American Bar AssociationAmerican Bar Association
The American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...
's Family Law Section was asked to appoint a committee to work with the committee from the NCCUSL. The initial draft of the Uniform Marriage and Divorce Law written by the NCCUSL committee would direct judges to grant the petitioner's request to end the marriage if the judge found that the marriage was "irretrievably broken", a term which this draft did not define. Because the term "irretrievably broken" was not defined, the committee from the American Bar Association (ABA) Family Law Section disapproved of this draft of the Uniform Marriage and Divorce Act. In response, the NCCUSL committee added a 180-day separation requirement in order for judges to find that the marriage had been irretrievably broken. However, the NCCUSL committee also added language to allow judges to grant a petitioner a divorce if "there is serious marital discord adversely affecting one or both parties toward the marriage."
The committee from the ABA Family Law Section objected to the ability of a petitioner to avoid the 180-day separation requirement by asserting "serious marital discord." In his letter recommending that the American Bar Association House of Delegates not approve the amended draft proposed by the NCCUSL, Arnold J. Gibbs, the chairman of the ABA Family Law Section, stated that the NCCUSL proposed draft created a rubber stamp type of divorce procedure. Mr. Gibbs wrote the following:
- "The creation of a mere 'rubber stamp type' of divorce procedure would not be in the best interests of the family, its individual members, and society in general."
Copies of the recommendation to disapprove the NCCUSL's amended draft were provided to the National Conference of Commissioners of Uniform State Laws (NCCUSL), Young Lawyers Section and the National Association of Women Lawyers (NAWL). The committee from the NCCUSL refused to further amend its draft of the Uniform Marriage and Divorce Act.
At the 1974 midwinter meeting of the American Bar Association in Houston, Council members of the Family Law Section indicated dissatisfaction with the public image the section was getting from its opposition to the NCCUSL's draft of the Uniform Marriage and Divorce Act. In a policy statement the ABA Family Law Section chose to recognize separation only as conclusive evidence of marital breakdown and not as an unbending test, implying that other evidence to establish marital breakdown would be admissible."
The adoption of no-fault divorce laws by the other states
By 1977, nine states had adopted no-fault divorce laws, and by late 1983, every state but South DakotaSouth Dakota
South Dakota is a state located in the Midwestern region of the United States. It is named after the Lakota and Dakota Sioux American Indian tribes. Once a part of Dakota Territory, South Dakota became a state on November 2, 1889. The state has an area of and an estimated population of just over...
and New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
had adopted some form of no-fault divorce (although some forms were not as easy to obtain as that in California). South Dakota adopted no-fault divorce in 1985. Until August 2010, New York still lacked a unilateral "no-fault" divorce statute; under New York divorce law
New York divorce law
On August 15, 2010, Governor David Paterson signed no fault divorce into law in New York state.Until 2010, New York recognized divorces only upon fault-based criteria, though the parties might agree to enter into a separation and have the separation agreement or judgment be the further basis for a...
only if both parties notarized a separation agreement
Legal separation
Legal separation is a legal process by which a married couple may formalize a de facto separation while remaining legally married. A legal separation is granted in the form of a court order, which can be in the form of a legally binding consent decree...
and lived separately for one year, could a judge convert it into a divorce. New York governor David Paterson
David Paterson
David Alexander Paterson is an American politician who served as the 55th Governor of New York, from 2008 to 2010. During his tenure he was the first governor of New York of African American heritage and also the second legally blind governor of any U.S. state after Bob C. Riley, who was Acting...
signed a no-fault divorce bill on August 15, 2010. As of October 2010, no-fault divorce is allowed in all fifty states and the District of Columbia.
In August 2000, Attorney Ed Truncellito filed suit against the State Bar of Texas, alleging the no-fault law in Texas was misapplied because he asserts that the legislative history of no-fault divorce law in Texas makes it clear that the law was meant for uncontested cases only.
Australia
Australia's laws on divorce and other legal family matters were overhauled in 1975 with the enactment of the Family Law Act 1975Family Law Act 1975
The Australian Family Law Act 1975, sometimes referred to as the FLA by legal practitioners, is an Act of the Australian Parliament. It is one of four separate Acts that provide the framework for family law in Australia...
, which established "no-fault" divorce in Australia. Since 1975, a divorcing couple need only establish a twelve month separation; they need not show either party is at "fault" for the divorce to be granted by the Family Court of Australia
Family Court of Australia
The Family Court of Australia is a superior Australian federal court of record which deals with family law matters. Together with the Federal Magistrates Court, it covers family law matters in all states and territories of Australia except Western Australia...
. However, a residual "fault" element remains in relation to child custody
Child custody
Child custody and guardianship are legal terms which are used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child.Following ratification of the United...
and property settlement issues.
Sweden
Swedish law does not include a showing-of-fault requirement for divorce. The couple can file for divorce together or one party can file alone. If one party does not wish to get divorced or if they have children under 16 living at home there is a required contemplation period of 6 to 12 months. During this period they stay married and the request must be confirmed after the waiting period for the divorce to go through.Arguments For
Economists Betsey Stevenson and Justin Wolfers argue that their research proves when states allow no-fault divorce, domestic violence declines, as does female suicide. Specifically, they report that "states that adopted no-fault divorce experienced a decrease of 8 to 16 percent in wives’ suicide rates and a 30 percent decline in domestic violence." They also argue that their research proves there is no permanent effect of no-fault divorce laws on divorce rates.Stephanie Coontz
Stephanie Coontz
Stephanie Coontz is an author, historian, and faculty member at The Evergreen State College. She teaches history and family studies and is Director of Research and Public Education for the Council on Contemporary Families, which she chaired from 2001-2004. Coontz has authored and co-edited...
, a professor of history at Evergreen State College, states that "in the years since no-fault divorce became well-nigh universal, the national divorce rate has fallen, from about 23 divorces per 1,000 married couples in 1979 to under 17 per 1,000 in 2005." She also states that before no-fault divorce was legalized, "Expensive litigation strained court resources" and that "once you permit the courts to determine when a person’s desire to leave is legitimate, you open the way to arbitrary decisions about what is or should be tolerable in a relationship, made by people who have no stake in the actual lives being lived."
Lawyer L.M. Fenton states "Feminist holdouts against New York's new bill [which allows no-fault divorce] don't understand how family law affects women today," adding "It also mystifies me that spouses could still, even in 2010, be forced to stay married to someone who refused to let go." She further states that, "Fault-based grounds usually include mental cruelty, but true mental cruelty has a psychological component that can make it very difficult for the abused spouse to articulate that abuse. More to the point, the abused spouse may be terrified to describe the relationship on paper and testify about it in a court. And of course, a controlling partner will always choose the path of most resistance to whatever it is that the other spouse wants."
A 2010 New York Times editorial states that "New York is the only state where a court must find fault before granting a divorce unless the spouses have lived apart for a full year under a formal separation agreement — a proven formula for inviting false testimony, endless litigation and generally making divorce far more painful than it needs to be ." New York has since legalized no-fault divorce.
Arguments Against
Carrie LukasCarrie Lukas
Carrie L. Lukas is the managing director and director of policy for the conservative but non-partisan Independent Women's Forum . She is also a senior fellow at the Goldwater Institute and a contributor to National Review Online. Before her tenure at the IWF, Lukas worked for then U.S...
, vice president and director of policy Independent Women's Forum
Independent Women's Forum
The Independent Women's Forum is an American conservative, non-profit, non-partisan research and educational institution focused on domestic and foreign policy issues of concern to women...
, has stated that "no fault divorce... makes the marriage contract effectively no contract at all". She has also stated, "People wonder why marriage as an institution is in trouble. One reason could be that the legal system has devalued the marriage contract and made marriage a less attractive institution."