Saturday, December 22, 2012

Fault or No-Fault


The English common law on which the U.S. legal doctrines and concepts are based, defines marriage as a voluntary private agreement by a man and a woman to become husband and wife. It is viewed as the basis of the family unit and vital to the preservation of morals and civilization. The Texas Supreme Court in the case of Sheffield v. Sheffield, 3 Tex. 79, 85-86 (1848) also gave a good definition of marriage when it held that marriage is the most solemn and important of human transactions, regarded by nations as the basis of civilized societies, of sound morals, and of domestic affections. The mutual comfort of the parties is the princcipal, but not the only, objective. Marriage is intended also for the benefit of their common offspring, and is an important element in the moral order, security and tranquility of civilized society. The parties cannot dissolve the contract, as they can others, by mutual consent, and no light or trivial causes should be allowed for its rescission.

Marriage was first instituted by God in the Garden of Eden. It is a monogamous, physical and spiritual union between a man and a woman (Gen. 2:21-24), where adultery was forbidden (Exo. 20:14), and dissolution was not allowed (Mark 10:9, 1 Cor. 7:10-11). However, men live in an imperfect world, and later divorce was allowed in certain circumstances such as adultery (Matt. 5:32, 19:9) and abandonment (1 Cor. 7:15).

In the U.S., divorce formally dissolves marriage. Originally, divorce was granted only when spouses are able to prove that at least one of them was "at fault." The grounds vary in each state. Common grounds include adultery, cruelty (inflicting unnecessary emotional or physical pain), attempted murder, desertion for a specified length of time, habitual drunkenness, use of addictive drugs, insanity, physical inability to engage in sexual intercourse (if it is not disclosed before marriage), confinement in prison for a set number of years and infection of one's spouse with venereal disease.

In 1969, the Gov. Ronald Reagan signed into law the first so-called "No-Fault Divorce Law." Under this law, the spouse suing for divorce does not have to prove that the other spouse did something wrong. There is no need to prove "guilt" of a spouse. The suing spouse can simply state a reason recognized by the state. For example, "irreconcilable differences."

At present, all 50 states have adopted some form of "no fault" divorce with New York, which does not recognized "irreconcilable differences" as a ground, having the "strictest" no-fault divorce. In a no-fault divorce, it is enough to declare that the couple cannot get along, i.e., "incompatibility", "irreconcilable differences have caused an irremediable breakdown of marriage," "the relationship is no longer viable," "discord or conflict of personalities have destroyed the legitimate ends of marital relationship and prevents any reasonable possibility of reconciliation", or "marriage is irretrievably broken" (Cornell University Law School. Legal Information Institute. "Marriage: An Overview."). At present, 22 states no longer allow fault-based grounds for obtaining divorce.

Summary of Changes in Divorce Law

Traditional Divorce
No-Fault Divorce
Restrictive Law
To protect marriage
Permissive Law
Facilitates divorce
Specific Grounds
Adultery, cruelty, etc.
No Specific Grounds
Marital breakdown
Fault
One party causes divorce
No Fault
Cause of divorce irrelevant
Gender-based Responsibilities
Husband responsible for alimony
Wife responsible for custody
Husband responsible for child support
Gender-Neutral Responsibilities
Both responsible for self-support
Both eligible for custody
Both responsible for child’s support
Financial Awards Linked to Fault
Alimony for “innocent” spouse
Financial Awards Based on Equality and Need
Alimony based on need
Great Share of property to “innocent” spouse
Property divided equally
Adversarial
One guilty party, one innocent party
Financial gain in proving fault
Non-adversarial
No guilty or innocent party
No financial gain from charges
Amicable resolution encouraged



What impact have "no-fault" divorce had on American society?

The U.S., which is considered the most religious nation, has the highest divorce rate in the world (Dafoe and Popenoe). According to the data gathered by the National Center for Health Statistics, there has been an increase in the divorce rate since 1970 when no-fault divorce was passed into law (Reform Divorce).

Opponents of no-fault divorce believe that, in many cases, no-fault makes it too easy to resist couples whose marriages are on the rocks because they do not need to prove, or even have, valid grounds for the dissolution of their marriage. Stormie Omartian, author of The Power of Prayer to Chang Your Marriage said, "the reason the divorce rate is so high is because divorce is considered an option in the minds of at least half of the people getting divorced. It is spoken of as a solution. It appears to be the only way out of a miserable situation." With no-fault divorce, that option is easily attainable; and because there is an easy way out, spouses are no longer willing to wait to invest as much energy into saving their marriage. The concept of marriage as a sacred covenant and an inviolable social institution is gone. Marriage vows to remain together have lost its value.

What are the negative effects of no-fault divorce? Cathy Meyer, in her article "The Issue of No-Fault Divorce" wrote that those who argue against no-fault allege that:
  • an economically dependent spouse may not be adequately protected when it is very easy for the other spouse to obtain a divorce because in 75% of the cases the courts will not enforce any spousal support.
  • Family Courts used to put efforts into protecting the sanctity of marriage, now their main concern is to make divorce fast so as to get it off the dockets of the court.
  • negative impact on children. Former First Lady Hillary Clinton, in her book "It Takes a Village", wrote that children without fathers, or whose parents float in and out of their lives after divorce, are "the most precarious little boats in the most turbulent seas." Children living with one parent or in stepfamilies are two or three times more likely to have emotional or behavioral problems as children living in two-parent families. A parent's remarriage often does not seem to better the odds.
Meyer also listed down the arguments of the proponents:
  • no-fault lessens conflict between parties and shortens the length of time to obtain divorce. This, in turn, shortens the stress involved, and the emotional harm to both parties and the children.
  • financial settlements are based on need, ability to pay and contribution to family finances rather than on fault.
  • makes it easier for a spouse in an abusive marriage to leave.
In response to what has been perceived as the high rate of divorce and the problem associated with no-fault, many states have already proposed legislation to modify no-fault divorce and studies are being undertaken on the issue (Hershkowitz). The legislators are on the right track in their efforts to reform the present no-fault divorce law.

Although marriage is a commitment, it does not mean that spouses should forever be trapped in an abusive marriage. When all efforts, including marital counseling and professional help, have been futile, divorce can be the last resort. However, it must be based on valid grounds rather than a means to be used by a spouse who wants to take an easy way out of a commitment to "remain faithful for better, for worse, 'til death do us part."

(I submitted the foregoing as my research essay in my English Composition class)

*This is a re-post from my blog, A Woman Speaks. Posted on June 7, 2009.







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