Some conservative, perhaps religious based, leaders suggest that divorce should only be allowed when one spouse, the other, or both engage in what historically was known as “martial fault” or “martial misconduct.” These were religious-based grounds, namely abandonment, adultery, cruelty, intemperance, and incurable insanity. A return to fault-based grounds would reverse about 50 years of “no-fault” divorce in all 50 states. In simple terms, the question is whether a return to fault-based grounds would be good or bad for married couples and whether fault-based grounds would benefit U.S. society as a whole or be detrimental to it.
Undoubtedly, our society favors the institution of marriage. It is a religious-based institution that became based in law as law and society evolved. For hundreds or even thousands of years, a man and woman, never mind a same sex couple, living together out of wedlock was not only sinful, but probably resulted in the couple being shunned within the community. Thus, historically, the decisions to marry and to divorce were a matter of morality. Today’s no-fault grounds for divorce essentially allow each married individual to apply his or her moral standards to the question of whether to divorce, rather than the much harsher standards derived from religion in the prior fault-based grounds. Nevertheless, what should happen when marriages are unhealthy, lead to chronic unhappiness, or become intolerable, not to mention high-conflict marriages that have harmful effects on children? How easily should one be able to end a marriage? Paraphrasing one politician, should it be as easy as changing one’s pants?
Another important consideration is the prior legal effect of marital fault. For instance, to prove adultery, one spouse may have burst through a hotel room door with a movie camera to catch the other spouse in the act of adultery which, in fact, included sexual intercourse. In the days of fault-based grounds, women most often were classic “housewives” and were supported by their husbands. If a wife committed adultery, she could not receive alimony, though limited exceptions evolved over time. To avoid such an adverse outcome, a wife might have provoked her husband to beat her up so she could divorce on grounds of cruelty. By modern standards, when one proverbially “looks below the surface,” fault-based grounds for divorce implied serious social and moral issues. Over 50 years ago, the question was raised as to whether the ills of fault-based grounds justified the strife associated with proving those grounds and with seemingly harsh outcomes for a party “at fault.” Over the course of 20 years or so, all 50 states answered that question in the negative and abolished fault-based grounds for divorce.
One too should consider the overall cost of proving fault-based grounds for divorce and the cost to society of its harsh consequences. Generally, divorce litigants complain about the cost of a divorce, particularly attorney’s fees and litigation expenses. They also complain about lengthy proceedings. Without question, a divorce litigant having to prove marital fault or to defend against it would significantly increase the cost of litigation. Moreover, the harsh legal consequences previously associated with marital fault could cause the at-fault spouse to rely on public support to meet living expenses. Just as importantly, the law still provides consequences for some types of marital misconduct, but the consequences are not as harsh as in the days of fault-based grounds.
After most states abolished fault-based grounds, the behavioral sciences significantly advanced. Of particular significance, parental conflict can adversely affect a child’s brain development and can lead to mental health issues during a child’s teen years.
