The Pros and Cons of No-Fault Divorce, and Why New York Stays Con
As it stands, New York is the only state in the U.S. which does not have a system of no-fault divorce. To obtain a divorce in New York, one spouse has to show some kind of fault on the part of the other (usually taking the form of adultery, abuse, neglect, or abandonment). In a no-fault state, the spouse seeking divorce needs only to cite “irreconcilable differences,” or something similar, to obtain a divorce.
No-fault divorce in the U.S. began in California, with the passage of that state’s Family Law Act of 1969. It was signed into law by Governor Ronald Reagan, and took effect in 1970. This was the first state law to institute no-fault divorce. By 1983, every state but North Dakota and New York had created for itself a no-fault divorce system. By 1985, New York was the only remaining state to require some showing of wrongdoing before a divorce could be granted.
As early as the 1930s, however, legal scholars had criticized the then-prevalent system. They noted that it often made it very difficult for couples who were unhappy in their marriages to separate and get on with their lives. Because some showing of fault was required to get a divorce, couples who wished to divorce would sometimes manufacture fault. For example, spouses might arrange for one to catch the other in an act of adultery, creating grounds for divorce.
By the mid-20th century, judges and lawyers were aware that such collusive conduct was becoming increasingly common. Worried that this hurt the integrity of the judicial system, the movement to institute a no-fault system gained steam. The rest, as they say, is history.
With the no-fault system relatively entrenched in American society, people have spent quite a bit of time examining the pros and cons of such a system.
Proponents of the no-fault system note that rates of domestic violence decreased in virtually every state that instituted such a system. They argue that this was primarily caused by the fact that no-fault divorce made it easier to end unhealthy marriages before they became abusive.
Proponents also argue that the no-fault system preserves the integrity of the judicial system, since spouses are no longer forced to lie to courts by manufacturing fault in order to end their marriages. Furthermore, they argue that valuable judicial resources are freed up, because there are far fewer (if any) major evidentiary issues in a no-fault divorce than there would be if a showing of fault were required.
Opponents of no-fault divorce point to the fact that over 80% of all no-fault divorces are unilateral. This, according to opponents, takes away the other spouse’s power to try and save the marriage.
Furthermore, they tend to believe that marriage is a covenant larger than the 2 people who enter it. This usually has a religious aspect (“It’s a covenant with God”) but it can take on a secular flavor as well (“It’s a covenant with society”). They claim that no-fault divorce essentially does away with the higher covenant of marriage, if one partner can end it with no showing of wrongdoing on the part of the other.
Another argument, and apparently the one relied on by the New York legislature in its refusal to create a no-fault system, is that no-fault divorce is bad for women. The argument goes that a cheating, neglectful, or abusive (or all of the above) husband could file for a no-fault divorce and end up paying much less in spousal support than if the wife had divorced him based on his wrongdoing.
With all of this said, is no-fault divorce a good thing or a bad thing? As with any complicated issue, the answer to this question depends largely on your priorities. Proponents of no-fault divorce tend to take a more utilitarian approach to the issue, focusing on practical results (it lowers domestic violence, it preserves the integrity of the court system, it reduces the time and financial burden on the parties and the courts, etc.).
Opponents of no-fault divorce, for the most part, seem to base their arguments on prior principles (arguing, for example, that divorce is inherently immoral, and that marriage is a covenant larger than the 2 people it directly involves). There adherence to this approach is evident when they point to high divorce rates as an argument against no-fault divorce – it shows that they view divorce as an inherent wrong.
However, this approach doesn’t take into account a major problem with that reasoning: to someone who doesn’t view divorce as a particularly bad thing, pointing to a high divorce rate is not going to make for a convincing argument. Now, it’s possible that they point out this fact to rile up their supporters, and not to convince their opponents. However, we’ve seen how playing exclusively to the base is no longer a viable option, whether you’re trying to win elections, or convince the other side that your position is correct.
Do both of these approaches have some merit? Certainly. On balance, however, it seems that the benefits of no-fault divorce, especially the reduction in domestic violence, cannot be ignored.
In the end, the ease of divorce is probably not the root of the “problem” of high divorce rates – as we saw before the advent of no-fault divorce, people will find a way to work through the existing system to get a desirable outcome. Perhaps the divorce rate would be lower if people treated the marriage with the seriousness that such a life-altering decision deserves.
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