CONTRIBUTIONS
 
Overview
 
The Initiative
 
Committee Members
 
Press Release
 
White Paper

 

Overview: No-Fault Divorce Modification Initiative

The proposed statute is, in a substantial way, a return to the former fault
based divorce system - however it is at the same time a retention of the
current system in a significant way as well.  In other words - a compromise;
something the drafters of the Family Law Act of 1969 forgot to do.  The net
result, I believe, will be to substantially reduce the high incidence of
divorce in as politically and culturally palatable a way as possible.

The fundamental features of the proposed statute are two fold.  First, it
reinstates the old fault standards to be utilized for the benefit of a party
who feels they need to resort to such.  (e.g. a wife with a recidivist
adulterating husband might want to sue for adultery rather than
irreconcilable differences ).  Yet it also allows for the No-Fault standard
to be utilized as well.  This means that parties can choose to petition for
divorce based on any of the former fault standards or irreconcilable
differences.  The obvious default for many parties will be to seek divorce as
a mutually consensual decision based upon irreconcilable differences.
There's a catch.  And that leads to the second fundamental.

Where there are minor dependent children to the marriage, the No-Fault
standard for granting a divorce, irreconcilable differences, is not
available.  That means divorcing parties with dependent children will need to
establish grounds for the divorce under the former fault grounds or stay
together.  This is the salvo desperately needed by the family.  It will make
parents with dependent children think before seeking legal assistance of
counsel and thereafter being vacuumed into high speed "divorce mill" "family
law practices and court procedures.  If your thinking that sounds like a
return to the vicious and acrimonious fault system we jettisoned long ago;
read the footnote below and the white paper attached.

The proposed statute has a kind of built in "Mulligan" rule.  If you
discover post marital ceremony that you "married the wrong party" you can
fairly easily start over and try again by petitioning the court under
irreconcilable differences; six months later your out.  However, if the new
family has developed so much as to involve minor dependent children - the
fundamental issues of the family unit are present and the fledgling family
should be given protection and support both from the law and public policy.

The only other significantly important thing about the statute is that
evidence of fault is admissible for issues of property settlement in all
cases (except where both parties mutually petition under irreconcilable
differences).  This is a reversal from the current statutory scheme.  Under
the No-Fault system - no evidence of fault or malfeasance is admissible for
division of community property.  Meaning if you happen to be a violent,
sleazy or carnivorous "Mike Tyson" personality type and sue for divorce you
would still get half the community property, despite your repulsive ways.
Isn't that fair ?  No.  Covenant breakers should pay.  Period.  If you
violate your promise to keep covenant and act faithfully "till death do us
part", you should not be rewarded with an even split of the marital property.
The other party has been injured.  More significantly the institution of the
family has been injured.  That's why the trier of fact should be charged with
determining who gets how much based on evidence of malfeasance.  The current
egalitarian, radical individualism standard of  "judge not lest you be
judged" simply has not worked in family court.  In fact it's killing us.

The old statutory scheme was criticized for locking people in a loveless
marriage.  That argument remains defeated by the proposed statute.  This is
demonstrated by the classic scenario of a man who beats his wife and she
thereafter commits adultery - the doctrine of recrimination would block a
judgment of divorce for either party because each party was guilty of marital
fault.  However, under the proposed statute the above parties could seek a
divorce upon irreconcilable differences - assuming there are no dependent
children.  If there were dependent children then the old regime would play
out and the parties would not be granted a divorce (most likely) for the
benefit of the children and of the family.  When the family no longer has
dependent children the No-Fault standard would be allowed again and the
parties could part lawfully.