No-fault Divorce Modification: Grounds For Change
By Attorney David Prince
Introduction and Background
The American institution of the family has sustained catastrophic and
grievously debilitating blows in the last quarter century. In 1969
"no-fault" divorce was passed as law in California. In 1970 alone the
divorce rate in California jumped 36%. Thereafter, between 1970 and 1980 the
divorce rate skyrocketed 170%.
The American family has been pilloried in our generation worse than it has
in centuries. The public whipping of an anciently hallowed institution
originated in our very own beautiful sunshine state - California. In 1964,
then Governor Edmund G. Brown instituted the commission on the family to
study the legal issues surrounding divorce and the courts. In his charge to
the commission, Governor Brown stated:
Whatever the cause of the growing divorce rate -- the anxieties in our world,
a society of rootlessness and increasing mobility, an erosion of the moral
absolute -- divorce produces not only broken homes but broken lives. It
erodes the very foundation of our society, the family... Society is paying an
almost intolerable price for this breakdown of family life -- in terms both
of human misery and of public financial resources. (emphasis added).
Governor Brown also directed the Commission to undertake a "concerted
assault on the high incidence of divorce in our society and its often tragic
consequences". The divorce rate responsible for the then termed "breakdown
of family", was approximately 3.2. The national average was 2.5. Presently
the divorce rate in California is something close to 4 and was peaking
above 6 during the mid seventies.
The governors' commission combined their expertise to accomplish (despite
their charge by the governor) a 170% rise in the divorce rate over the next
decade . In addition they helped ensure that 40% of all first marriages
would end in divorce ( up from 16% in 1960 ). Roughly one million children
suffer divorce each year (up from half that in 1960) and then suffer an
average 30% drop in living standards .
Most staggering of all is the fact that since the advent of no-fault divorce
exactly zero petitions for divorce have been denied - by any court of record
- since the inception of the Family Law Act for want of irreconcilable
differences. No-fault divorce leads ineluctably to divorce on demand.
The vision of no-fault conceived by the commission, that scrupulous trial
courts - not impulsive couples - would determine the right to a divorce,
never materialized. Trial courts under California no-fault simply refused to
deny divorces under any circumstances.
No-fault reforms were actually promoted based upon modest reasons -
predominantly to reduce hostility and acrimony associated with divorce and to
bring the law into conformity with the reality of affairs in divorce court.
The changes were not intended to foment a reduction in the nature of the
institution of the family, or marriage .
Contrary to the intention of no-fault reformers, intensity, hostility and
acrimony have not subsided from divorce litigation. Although there is less
adversity in adjudication of fault issues (there is none respecting the issue
of dissolution anymore), the animosity has merely shifted to other areas
divorce litigation such as property disputes and custody battles - in fact a
developed strategy to obtain advantage in custody cases is to make false
allegations of child abuse ( i.e. fault related issues).
Further, the incidence of hostility under the former law is not as high as
suggested by contemporary proponents of no-fault divorce. In fact 90-95% of
divorces prior to institution of no-fault divorce were uncontested and thus
did not have the kind of "scorched earth" hostility complained of by the
reformers in 1969 . Conversely, no-fault divorce has actually produced
increased litigation resulting from collateral issues to the divorce and in
follow-up litigation to determine lingering and derivative issues of past
CRITICISMS OF NO-FAULT DIVORCE
Increased Divorce Rate:
It is becoming accepted that " the switch from fault based divorce to
no-fault divorce led to a measurable increase in the divorce rate. The so
called "soaring divorce rate" in California prior to the 1969 Family Law Act
looked something like this:
/ Average Divorce Rate
Year / per 1000 population
If the divorce rate was "soaring " in 1966 it has now lost gravity and is
experiencing geosynchronous orbit. While it is probably impossible to
determine the magnitude of impact of the numerous social factors which have
combined so as to increase the divorce rate, the best evidence indicates that
the adoption of no-fault divorce was a significant factor in increasing the
divorce rate .
Social Policy and the Law:
Modern no-fault has failed to uphold traditional social policy respecting
the institution of marriage. Social policy has historically upheld the
institution of marriage, helped to stabilize it, prevent marital disruption
and showed little concern for any aggravation in marital breakdown. No-fault
has not appropriately balanced this social goal with the competing goal of
easing distress in marital dissolution. In fact it has rather tended to
aggravate each respective goal. Contemporary divorce law now disaffects the
institution of marriage by degrading the expectations of success in marriage
Divorce Related Violence:
Increased violence and delinquency to children, as an incidence of divorce
may come as no surprise, but it has been slow to be recognized by social
authorities. Governor Brown himself supplied good support for this
proposition by stating that three quarters of the juvenile delinquents and
more than half of the inmates in penal institutions "come from broken homes".
Communities with high numbers of single parents have dramatically increased
crime rates, drug use, High School drop-outs, unemployment etc. The absence
of fathers in homes contributes to children who are less happy, less healthy,
less equipped to deal with life or produce work and who are a greater threat
to themselves and others.
It is also noteworthy that no evidence is on record linking no-fault divorce
laws to the achievement of its goal of reduced levels of spousal abuse or
violence. The no-fault system was specifically instituted to reduce hostility
historically associated with divorce litigation. The continued existence of
pervasive serious violence associated with divorce litigation defy that
Divorce is an act of violence of its own nature. It is a dramatic act,
violently tearing its victims to a futile end of emotional, physical, social
and economic separation. Victims of divorce are typically reduced to a
proletariat class status of emotional pariah. The act of divorce disinherits
its victims from their ancestral place of rightful position in society. They
no longer belong at home.
The reality of divorce related violence is worse yet. There has been a
veritable "no-fault divorce culture" conceived of the no-fault divorce
revolution of the 60's and 70's. It's a culture rife with violence. Every
form of violence imaginable. This includes violence on the institution of
the family, violence on religion and violence on values associated with
religion. No-fault divorce law communicates powerful value messages, yet it
does not express an ideology of a particular person, religion or cause .
That is what makes it most dangerous of all.
Revolutions generally involve violence. The no-fault divorce revolution is
no exception. Even at surface level the case can be made, based on court
room shootings alone, which appeared from nowhere since the institution of
the no-fault regime , that no-fault, as an institution, equals violence. The
no-fault shock wave toppled the social structure of the old establishment and
violence was the natural consequence of this revolution.
The violence generated as a result of the no-fault divorce revolution can be
viewed as a dimension of social upheaval - a savage in-kind response to the
brutal crushing of a millenniums old social structure. Many people of this
generation had settled expectations of the order of their lives and the rules
and boundaries defining their family relationships; including the conditions
on which marriage may be terminated. This generation was unsuspectingly
introduced to a divorce-on-demand culture, and have reasonably and
justifiably believed that their world has been violently dashed, undermined
and substantially ruined by a newly communicated ethic that marriage is no
longer a permanent lifetime commitment or one that is supported and venerated
by society. Violence begets violence.
The ethic of "terminable at will" marriage is based on the idea of radical
individualism. In this model, the family is no greater than the sum of its
parts. This is none other than the age old fairy tale of liberated
individualism forming the organic parts of a utopian society. Our society,
like others now long deceased, will not be able to tolerate this kind of
policy in a sustained manner.
no-fault divorce each year produces millions strewn in the battlefields of
divorce , and will ultimately bring our society to defeat and ignominy.
Children of Divorce
Children of divorced families live on average a four year shorter life span.
( see Health Issues below). Children post-divorce have multiple psychological
and behavioral sequela . Children of low intensity divorces tend to suffer
negative effects in:
* School performance and completion * Depression
* College completion * Crime
* Labor force attachment * Suicide
* Ability to form lasting relationships * Psychological illnesses
* Out-of-wedlock births * Propensity for divorce
* Diminished Trust
A recent study revealed that "divorce is a cumulative experience for the
child; its impact increases over time" . Thus children of divorce feel the
psychological fallout for decades, well into adulthood, contrary to popular
belief that children get over their parents' divorce.
Five years after divorce over one third of divorcee children suffer from
moderate to severe depression. Serious adverse consequences in children are
continued to be found 10 - 15 years later . Three principal causes of
violence or harm to children in divorcing families are: diminished income
post divorce, diminished parenting time post divorce, and disruption of
established ties to friends, neighbors etc.
Children in marriages experiencing physical abuse or emotional cruelty fare
better if the marriage breaks up . But children in marriages experiencing
low intensity conflict (e.g. emotional tension present in all divorces ) fare
better if the marriage holds together. Many more of the marriages which split
up today are of the latter category. Law and public policy should favor the
preservation of marriages which have minor dependents yet are suffering only
low level conflict. This is the imperative of the proposed divorce
modification statute. Something has to be done for Governor Brown's 70% of
all incarcerated juveniles which come from fatherless homes .
Divorce and marital breakdown causes so much stress it puts the parties at
much higher risk for psychiatric and physical disease. Divorced men are
twice as likely to die from heart disease, stroke, hypertension and cancer as
are married men. Divorced men suffer the same health risks as a pack a day
smoker ! Divorced women are two to three time as likely to die from cancer.
A Recently released psychology study by psychologist Terman who studied the
life course of highly intelligent children found its results suggest that
children of divorce live on average four years less than those whose parents
didn't divorce .
Women on average will suffer a 30% drop in income post divorce. Men can
expect a 42% rise in income post divorce. For women this has been called an
economic trajectory of "falling from Grace" . Women do not recover their
predivorce standard of living, on average, for five years. The economic
fallout for women postdivorce is analogous to experiencing the great
depression. No-fault worsened women's condition an improved men's condition
post divorce - it widened the income gap between men and women.
Women postdivorce also will tend to become transient, changing their
residence about one third more often than married women. And will experience
higher rates of quitting jobs and being laid off in the year after divorce.
Radical feminism has been hostile to the traditional family - though they
were not a significant force in bringing no-fault divorce to California.
However, by the support they gave Feminists unwittingly aggravated the agony
of women by helping tear down an institution they claimed was injuring women.
They did this by cooperating with the creation of no-fault divorce.
Doubtless they will with difficulty agree to make divorce laws more rigid in
the name of female autonomy, but there is hope that they will, because they
injured the plight of women at their own hand .
Culture, Morality and Common Sense
Americans today place less value on obligation to others, sacrifice and
self-restraint. By contrast we place more value on self-expression
self-realization and personal choice. Americans therefore accept divorce
vastly more than 30 years ago. Divorce is destigmatized. No-fault divorce
swept aside along with the old fault standards, any memory of a moral
standard of responsibility to the marriage . We are now likely, as a
culture, to believe that marriage is a means to personal happiness rather
than a purposeful commitment for life for the happiness of the children and
society. We are also much less likely to believe that a less than
satisfactory marriage should make the effort to stay together.
Divorce is the ultimate alienating experience. Alienation is one of the
determining realities of the contemporary age. "Changes and dislocations in
the cultural environment will be followed by dislocations in personality
itself. " Cultural demoralization and despair may follow. These cultural
changes are characterized by the collective rage of individual victims of
The former soviet union was the first country in modern times to adopt the
marital breakdown approach. In 1917 the Soviet regime introduced divorce
with no statement of fault required. Today divorce with no statement of
fault is the sole basis upon which divorce can be granted in the Soviet
Union. This has not been a formula for a successful society.
Common sense tells us that at the margin, lower barriers to exit marriage
produce larger numbers of departures . Some will stay married despite a low
threshold in the law, others will divorce no matter what the barrier - but
those in the zone of moderate discontent will be influenced by the perceived
or real difficulty of exiting the marriage. Hence tightened divorce law
equals fewer divorces and therefore more families that will hang together for
the long term.
Many people, perhaps even most people, take their basic moral standards from
the enacted laws. Today's divorce law communicates an ethic of radical
individualism and self aggrandizement above the institution of the family,
marital partners, children and the economically advantaged over dependent
spouses. If our society will not set a moral standard for what constitutes
acceptable minimal bases for entering or exiting a family, the American
family and perhaps our very society will die a hasty and probably tawdry
death. ( See History of Divorce below).
Another reason to return the fault standards to the law is for historical
continuity. Adding in no-fault guts the old regime any way you count it.
But retaining the old fault language on the books keeps in the memory of our
culture the fundamentals of who we are as a people. Removing the fault
standards from the law was tantamount to masking over Moses and the ten
commandments engraved above the United States Supreme Court Justices' heads.
The no-fault revolution leapt in the dark to an untested extreme. It went
from a stilty, though working, fault system to unilateral divorce on demand.
The sensible middle ground was ignored: a no-fault standard folded in with
the traditional fault grounds for protection of parties who want to fight for
their marriages. ( This middle option discharges the "hypocrisy" of
collusiory manufactured testimony to construct fault grounds in procurement
of a divorce while avoiding the institutional leveling and upheaval that
divorce on demand has brought us).
DEFENSIVE ARGUMENTS TO FORECASTED ATTACKS
Q. Return of the fault standard will take us back to the "bad old days"
where women were trapped in abusive marriages:
A. The first response to this is to differentiate between low level
dissatisfaction cases and actual physical or emotional abuse cases. Some of
these allegedly "trapped" women were actually low level dissatisfaction cases
to whom public policy should not support with easy divorce. Adding back the
fault standards will have a tendency to dissuade these former cases from
divorce, or at least were children are present. The latter will seek divorce
regardless of the legal standards forming a barrier to exit the marriage.
Second, the proposed initiative will allow Irreconcilable Differences as an
alternative standard. The only substantial change to existing law regarding
Irreconcilable Differences cases would be the standard for division of
property to which any evidence of fault may be brought in to show why equal
division of community property rule should not be applied. The court will be
given broad discretion over this issue.
The reality of no-fault is that the standards are set so low that nobody gets
"trapped" in a marriage. Everybody who wants to try wins a divorce decree.
This results in sabotage to the institution of marriage as we see happening
today. No-fault weakens or even eradicates the bargaining position of a
spouse who wants to keep the marriage together. No-fault has instituted a
right to unilateral marital demolition by divorce on demand. The Courts are
now playing the role of registrars of divorce to naked divorces
no-fault also robs couples of any security in their marriages because the
possibility of separation looms like a guillotine over the relationship.
The individual can do little or nothing to prevent the impending divorce
doom over their marriage. No rules, standards or remedies protect the
individual from this swamp of jurisprudence. Married people are now
catapulted naked into Aldous Huxley's Brave New World without so much as a
Q. Return to the fault system will take us back to the days of hypocrisy
where parties came to court with manufactured testimony to achieve judgment
of divorce or where parties actually contracted out for fault grounds, such
as hiring out to commit the act of adultery, only to be stonewalled in court
by the doctrine of recrimination, collusion or connivance.
A. No. The fault standards and irreconcilable differences are parallel in
the proposed statute and may be pursued independently. Parties determined to
obtain a divorce will doubtless get one based on irreconcilable differences.
However if one party wants to preserve the marriage believing it not broken
beyond repair they may lose on the dissolution issue but will not go on to
have their wounds salted on the way out of court by having to relinquish an
equal share of the marital resources to a party who broke their vow "till
death do us part" by violation of some essential standard understood in the
concept of marriage.
Rather the suffering party may enter evidence of fault or show breach of the
marital covenant in some capacity and at least be vindicated economically in
the discretion of the court to the relevant circumstances. This is the
justice the family so desperately needs. The balm of justice foreclosing the
violent, the covenant breaker, the selfish and vile from not walking away
justified with a smirk of ego-centric self-gratification.
ARGUMENTS IN FAVOR
1. States of Virginia, Texas, Iowa and Michigan have proposals on the table
to roll back no-fault.
2. Support for tougher laws is strong among young adults.
3. The proposed statute will help return respect back to the institution of
the family if not dramatically reduce the divorce rate.
4. The state of Louisiana just passed a marital covenant statute which
returns the fault system in their state for those who desire it.
5. Physical and mental health statistics strongly support a public policy
shift to stricter divorce laws.
HISTORY OF DIVORCE:
DE' JA VU
The Roman Republic made divorce a mater of civil contract freely terminable
at will. However, traditional family mores were exercised such that strict
controls over divorce were imposed making it relatively rare. Courts were
resorted to only for property settlement issues. In the later years of the
Roman Republic traditional family mores broke down and divorce become
commonplace. Family life then broke down completely.
Reaction to the debauchery that followed brought about the development of
the fault-oriented doctrine. Christians and Stoic philosophers who
disapproved of the sexual freedom eventually caused the pendulum to swing the
other way and in the middle ages to the other extreme.
With the Catholic church came the idea of indissoluble marriage. Based upon
Church doctrine, the Ecclesiastical Courts made marriage a bond that "no man
may put asunder". The church did allow for certain exceptions such as
annulment ( a marriage that never was ), and divorce from bed and board ( an
early precursor of legal separation ). It might be noted here that then as
now the mistress system was openly accepted and tolerated. Indissolubility
later became engrafted as Church dogma at the Council of Trent, 1563. Then
came the reformation....
The reformers exerted significant influence on the law of divorce. First
the law of marriage and divorce became a matter of civil contract, marriage
as a sacrament of the Church was repudiated and marriage was returned to
state courts for solemnification and remediation. The reformers all agreed
that marriage dissolution should be allowed and the only issue was the
respective grounds for divorce. John Knox stated:
Marriage once it is lauchfullie contracted may not be dissolved at manis
pleasour, as oure Maister, Jesus Christ, doth witness, onles adulterie be
commited; which being sufficientlie proven in the presence of the civil
magistrate, the innocent (yf thei so requyre) ought to be pronounced frie,
and the offender ought to suffer the death as God hath commanded.
The old grounds for separation under the Ecclesiastical courts became the
fault system for divorce and freedom to remarry.
Twentieth-century legal culture has reached an impasse on divorce. The
identity of the traditional American family hangs in the balance. A new
legal and cultural matrix must now emerge.
1 The divorce rate is no longer reported as a vital statistic in California
due to alleged budget constraints. It is still collected at the national
level based on county by county submissions of divorce decrees. However
these statistics are several years behind.
2 The commission was compiled of 3 State Legislators, 5 Judges, 6 Attorneys,
2 Law Professors, 4 medical doctors, 1 Pastor and 1 Social Worker.
3 Galston, Divorce American Style, The Public Interest, (pg. 14) Summer
4 Furstenberg, Divide Families: what happens to children when parents part,
p. 54 (1991)
5 DiFonzo, no-fault Marital Dissolution: ;The Bitter Triumph of Naked
Divorce; 31 S.D.L.Rev.
6 Wardle, no-fault Divorce and the Divorce Conundrum; Utah Law Rev. 98,
7 Many divorce actions under the former divorce statute were negotiated
settlements known as "bargaining in the shadow of the law".
8 J. of Marriage and the Family; 50 state survey
9 Hammer, Divorce reform in California; Santa Clara Lawyer,32, 33
10 Letter from Govenor Edmund Brown to California State Assembly, March 4,
11 Wardle, no-fault Divorce and the Divorce Conundrum; Utah Law Rev. 79,
12 Id. at 120
13 California Assembly Interim Commission on Judiciary Relating to Domestic
Relations, Final Report, 2 Appendix
to Journal of the Assembly vol. 23, No. 6 at 25. (1965)
14 Bork, Slouching Towards Gomorrah, p. 157. Also see Gallagher, The
Abolition of Marriage:
How We Lost the Right to a Lasting Love (1995), p. 31
15 Jacob, Silent Revolution: The Transformation of Divorce Law in the United
States 68, (1988).
16 Wardle, Divorce Violence and the no-fault Divorce Culture; Utah Law Rev.
17 Id. at 742.
18 Id. at 741.
19 Galston, Divorce American Style; The Public Interest. Su. '96., p. 15
U.O.Md., Institute for Philosophy and Public Policy.
20 Judith Wallerstein Center for the Family in Transition ( see article in
San Francisco Chronicle: June 3, 1997; p. A6 ).
21 Id. at 65
22 Wallerstein, Second Chances: Men, Women, and Children a Decade after
23 Galston, Divorce American Style; The Public Interest. Su. '96., p. 23
U.O.Md., Institute for Philosophy and Public Policy.
24 Furstenberg, Divide Families: what happens to children when parents part,
p. 70 (1991)
25 Whitehead, Dan Quyayle Was Right, Atlantic, Apr. 1993 at 47
26 American Psychologist, (1995): 50; 69-78. Terman studied the lives of
856 boys and 672 girls with an average age of 11 and with an IQ above 135;
all children were from California. The study began in 1921, the group now
post 70 years old are rapidly dying and have provided meaningful statistics
27 Newman, Falling from Grace: The Experience of Downward Mobility in the
American Middle Class, (1988).
28 Bork, Slouching Towards Gomorrah, p. 204
29 Mary Ann Glendon, Harvard Law Professor
30 Wardle, Divorce Violence and the no-fault Divorce Culture; Utah Law Rev.
31 Robert A. Nisbet, The Quest for Community 17, 1976.
32 Galston, Divorce American Style; The Public Interest. Su. '96., p. 19
U.O.Md., Institute for Philosophy and Public Policy.
33 Wardle, Divorce Violence and the no-fault Divorce Culture; Utah Law Rev.
34 O.R. McGregor, History of Divorce in England 5 (1957).
35 DiFonzo, no-fault Marital Dissolution: ;The Bitter Triumph of Naked
Divorce; 31 S.D.L.Rev.