No-fault divorce was not intended to alter the standards by which custody of children is decided, but it has. Some see this as a good thing; others see it as a bad thing. This raises the question: Would custody law be improved by restoring the concept of fault to divorce? Put another way, would requiring a spouse to prove some sort of marital misconduct on the other parent’s part be in children’s best interests? Would it better protect parental rights?
Before no-fault divorce, the concept of parental unfitness was broad enough to include substantial deficits in moral character. Most of the grounds for fault-based divorce (adultery, indignities, habitual drunkenness, cruelty, etc.) involved conduct evidencing poor moral judgment and character. As courts of equity, divorce courts were accustomed to applying the rule that relief should not be granted to a person who is guilty of wrongful conduct. The enactment of no-fault legislation, though, directed them to grant relief even to spouses who had breached their marital vows by engaging in adultery or other immoral conduct. It would hardly make sense for a court to deny custody of a child to a parent on the grounds of bad moral example if courts are not supposed to treat the moral example in question as bad. The end result is that many courts came to treat the fact that a particular spouse breached marital vows (such as by committing adultery and deserting the marriage with the parties’ children in tow) as irrelevant to the question of custody.1 This trend has resulted in making marriage “the only contract where the law now [sometimes] sides with the party who wants to violate it.”2
Political science professor Stephen Baskerville has observed that “a society that fails to enforce its contracts or otherwise value one’s word is a society that will lack the moral authority to hold anyone … to their promises.”3 It “is a society which can only function by substituting ever-greater applications of police power.”4 A child who is taken into the custody of a parent who is guilty of marital wrongdoing – e.g., a parent who leaves the family home to move in with his or her paramour, taking the child away from the family home, as well – may be told by the guilty parent, the court and divorce-related professionals that the divorce is a good thing and nobody is to blame, but in his heart he will almost certainly view the situation as working an injustice against the parent who is left behind, particularly if the left-behind parent did nothing wrong to cause the breakup. That, in turns, breeds disrespect for the concepts of love, commitment, mutuality of obligation, and parental authority. “Both socially and psychologically, divorce and separation almost always have a more detrimental effect on children than even high-conflict marriages, and the effects are exacerbated when one parent is removed or marginalized from the children’s lives through sole custody.”5
To address these problems, Baskerville suggests a combination of family law reforms including, inter alia, limitations on no-fault divorce when children are involved. 6
Other family law reformers see the restoration of the fault-based divorce system as a preventive solution to the custody problem. These reformers hope that by restoring a requirement of proof of marital fault in order to obtain a divorce, fewer divorces will be granted and there will be fewer custody proceedings as a result. These reformers, noting the skyrocketing rate of divorce that occurred after the enactment of no-fault divorce legislation, see a need to restore commitment to the institution of marriage. When the institution of marriage is threatened, they argue, parental protection of children is diminished, and so is children’s well-being.7 For this reason, they conclude that keeping marriages intact generally is in children’s best interests.8
The case for no-fault divorce
Principal criticisms of the proposal to resurrect fault-based divorce are the same ones that led to the enactment of no-fault divorce laws in the first place.9 The reasons most often given are: Fault-based divorce systems increase acrimony, which is harmful not only to spouses but also to their children;10 requiring proof of fault impairs the integrity of legal processes by creating an incentive to commit perjury;11 courts are disposed to grant divorces to couples who mutually agree to divorce;12 requiring proof of fault interferes with freedom of contract (the idea being that a couple should be able to end their marriage by mutual agreement);13 fault-based divorce proceedings violate family privacy, publicly revealing embarrassing or humiliating personal facts about the parties’ private lives;14 and the difficulty of establishing who is at fault for the breakdown of a marriage, particularly in cases where both parties share at least some of the blame.15 Finally, it is said that by eliminating the need to prove up fault, no-fault divorce lightens the burden on courts.
The problems with no-fault divorce
Whether no-fault divorce actually yields the benefits claimed for it – or whether it accomplishes them more effectively than fault-based divorce does – is debatable. While it would seem to accomplish some of these objectives more effectively than fault-based divorce did, cogent arguments may be made that it does not.16 Rather than reducing the divorce rate, for example, divorce actually increased after the enactment of no-fault divorce laws.17
While fault-based divorce certainly could intensify acrimony between spouses, no-fault divorce has not been shown to reduce the harm to children caused by divorce, particularly in the many at-will divorces in which the initial reason for the divorce isn’t hostility or conflict, but simply “growing apart,” boredom or the discovery of a new love interest.
Moreover, no-fault divorce really only has had the effect of shifting the acrimonious litigation from the issue whether grounds for divorce exist to the issue of who should have custody of the children. Custody litigation increased after the enactment of no-fault divorce laws.18
The argument about the need to protect the integrity of legal processes by reducing the incentive to commit perjury may be a good one as applied to divorces without children, may it is not necessarily a great argument when custody of children is involved. A no-fault divorce system coupled with a preference for awarding only one parent custody of the children provides just as much incentive to commit perjury as the old fault-based system did. “[N]o-fault grounds for divorce have only caused the lying to shift (as did the hostility) from the part of the proceeding dealing with the grounds for divorce to the collateral aspects, especially child custody and visitation disputes.”19 False accusations of child abuse, and especially child sexual abuse, increased with the advent of no-fault divorce.20
The argument that no-fault divorce better protects family privacy, and protects individuals from embarrassing or humiliating disclosures about their personal lives, is not applicable to divorces in which child custody is an issue. Nearly every aspect and embarrassing detail of the parents’ personal lives is relevant in a custody case. It has been suggested that the state’s intrusion into family privacy, far from declining, has actually increased significantly since no-fault divorce was implemented.21
As for freedom of contract, it is true that no-fault divorce does a better job of protecting it than fault-based systems do in those cases where both parties mutually agree to a divorce. But by going further and authorizing unilateral no-fault divorce, it works the opposite way, impairing the obligation of the marriage contract. Since freedom of contract means nothing if contracts are unenforceable, promotion of freedom of contract is not really as big a selling point for no-fault divorce as it might seem.22
The idea that no-fault divorce would lighten court caseloads also seems to have been proven wrong in practice. There has not been a decline in litigation. Instead, there’s simply been a shift in what people litigate about. Family court caseloads are heavier than ever.
A newer argument for no-fault divorce is that requiring proof of fault may make it more difficult for abused women to leave the men who abuse them.23 Putting aside the sexist and invalid assumption that only men abuse and only women get abused, the gist of this argument is that an abuse victim may not be willing to reveal the physical cruelty he or she has suffered, out of fear of retaliation.24 Commentators also have argued, however, that fault-based divorce is fairer to abused women precisely because only fault-based divorce requires victims to reveal the physical cruelty they have suffered.25 Moreover, the criticism is not really applicable to divorces with children. Whether a state has a fault-based or a no-fault system, evidence of domestic violence is relevant and admissible in connection with custody. Given that most states have laws giving an abuse victim a presumptive right to custody, it is not likely that an abused women would conceal the fact of abuse, whether she lives in a no-fault state or fault-based divorce state. At any rate, the fear of retaliation would be the same whether the victim resides in a fault-based state or in a no-fault state in which abuse is relevant and/or determinative of custody.
While it seems some arguments for no-fault divorce may be valid in the case of divorces without children, these arguments are not as strong – and some do not apply at all – in cases in which custody of children is at issue. In those kinds of cases, an argument can be made that enforcing all the obligations of the marital contract (not just the lifetime financial support obligation of the higher-earning spouse) may be a better way of protecting parental rights and promoting the best interests of children than no-fault divorce is.
Reinstatement of fault-based divorce in cases in which custody is at issue would raise the question whether the same grounds for dissolving a marriage that existed in the past (adultery, physical or cruelty, desertion, etc.) should be reinstituted, or whether additions or modifications to the traditional grounds should be made. If so, what kinds?
Rather than reinstating fault-based divorce, another approach would be to retain no-fault divorce but with a rebuttable presumption that custody should be awarded to the party who does not file a petition for divorce. The presumption would be rebuttable with evidence that grounds for divorce exist (adultery, abuse, etc.) This approach would be based on a belief that a child’s best interests normally will be served by remaining with the parent who does not abandon commitments for frivolous reasons, and who finds value in family. Ergo, “[t]he more dedicated, responsible party should keep the children….”26 It has been suggested that a presumption such as this, by creating a disincentive to divorce for minor or frivolous reasons in cases involving children, could reduce the divorce rate considerably.27
Reformers adopting this approach should consider whether anything else should be deemed sufficient to rebut the presumption. For example, in addition to breaches of the marital covenant justifying termination of the marital contract, perhaps child abuse, endangerment and neglect might also be appropriate bases for rebutting a presumption that the party seeking the divorce is acting contrary to the children’s interests.
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- This result sometimes was helped by legislation. When the California legislature adopted the first no-fault law in the country, evidence of marital misconduct was expressly made “improper “ and “inadmissible.” CAL. CIV. CODE §§ 4501, 4509 (1970) ↩
- Joe Woodard, Instant Divorce Can Mean Long-Term Woes, CALGARY HERALD (December 31, 2001) (quoting Maggie Gallagher.) ↩
- STEPHEN BASKERVILLE, TAKEN INTO CUSTODY: THE WAR AGAINST FATHERS, MARRIAGE, AND THE FAMILY 294 (2007) ↩
- Id. ↩
- Id. at 300 ↩
- Id. at 298; see also Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9, 87-91 (1990); VANCE PACKARD, OUR ENDANGERED CHILDREN, GROWING UP IN A CHANGING WORLD 247-48 (1983) (noting the harmful effect of divorce on children and suggesting that stricter requirements should be imposed on divorces sought by couples with children.) ↩
- June Carbone, Child Custody and the Best Interests of Children – A Review of FROM FATHER’S PROPERTY TO CHILDREN’S RIGHTS: THE HISTORY OF CHILD CUSTODY IN THE UNITED STATES, 29 FAM. L.Q. 721, 733 (1995); John C. Duncan, Jr., The Ultimate Best Interest of the Child Enures from Parental Reinforcement: The Journey to Family Integrity, 83 NEB. L. REV. 1240, 1244 (2005); Bruce C. Hafen, Children’s Liberation and the New Egalitarianism: Some Reservations about Abandoning Youth to Their Rights, 1976 B.Y.U. L. REV. 605, 656 (1976); Lynne Marie Kohm, Tracing the Foundation of the Best Interests of the Child Standard in American Jurisprudence, 10 J.L. & FAM. STUD. 337 (2008) ↩
- Carbone, supra note 7 at 733-35. ↩
- Ironically, one of the initial impetuses for no-fault divorce was the church’s desire to reduce the divorce rate. MAX RHEINSTEIN, MARRIAGE STABILITY, DIVORCE AND THE LAW 373-74 (1972). The original conception of no-fault divorce was not to eliminate the need to prove grounds for divorce, but to add “irreversible breakdown” as a grounds for divorce. It was originally contemplated that a couple would need to prove to a court’s satisfaction that the marriage truly was irretrievable, and (perhaps unrealistically) assumed that judges would commit the time and energy needed to determine whether no possible means for saving the marriage could be found. PUTTING ASUNDER: A DIVORCE LAW FOR CONTEMPORARY SOCIETY, THE REPORT OF A GROUP APPOINTED BY THE ARCHBISHOP OF CANTERBURY IN JANUARY 1964, at 34-39 (London: S.P.C.K., 1966). It was also thought that eliminating the need to fix blame in a divorce would reduce hostility between the parties, thereby encouraging reconciliation. Joseph Goldstein & Max Gitter, On Abolition of Grounds for Divorce: A Model Statute and Commentary, 3 FAM. L.Q. 75, 79-81 (1969). ↩
- HANDBOOK OF THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS 181 (1965), quoted in RHEINSTEIN, supra note 9 AT 383; Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 B.Y.U. L. REV. 79, 92 (1991). ↩
- Goldstein & Gitter, supra note 9 at 80; Stone, Moral Judgments and Material Provision in Divorce, 3 FAM. L.Q. 371 (1969); Wardle, supra note 10 at 93. ↩
- RHEINSTEIN, supra note 9 AT 105; Wardle, supra note 10 at 93-94; see also Goddard, A Report on California’s New Divorce Law: Progress and Problems, 6 FAM. L.Q. 405, 406 (1972) (observing that prior to no-fault divorce, 95% of divorced were granted on the grounds of mental cruelty, which courts had come to construe and apply so broadly as to comprise something like a de facto no-fault grounds for divorce.) ↩
- Wardle, supra note 10 at 80 ↩
- Goldstein & Gitter, supra note 9 at 82 ↩
- Id. at 79; Wardle, supra note 33 at 95. ↩
- See, e.g., Wardle, supra note 10. ↩
- Thomas B. Marvell, Divorce Rates and the Fault Requirement, 23 LAW & SOC. REV. 543, 549-53, 557-58, 563 1989); Wardle, supra note 10 at 118-19. ↩
- Alan H. Frank, John J. Berman & Stanley P. Mazur-Hart, No-Fault Divorce and the Divorce Rate: The Nebraska Experience – An Interrupted Time Series Analysis and Commentary, 58 NEB. L. REV. 1, 49-51 (1978); Paul Bohannon, Matrimonial Lawyers and the Divorce Industry, in TAX, FINANCIAL & ESTATE PLANNING DEVELOPMENTS IN FAMILY LAW 89, 127 (Joseph N. DuCanto ed., 1987); Wardle, supra note 10 at 100 (observing that “|u|nder no-fault, the conflict and assertion of blame for the failure of family and marital expectations is ‘hidden’ or asserted indirectly in disputes over child custody” and that “the shift of conflict from marital fault to child custody has not really been progress, given the emotional damage inflicted on innocent and impressionable children.”) ↩
- Wardle, supra note 10 at 105. Wardle observes that the abolition of the maternal preference, combined with the enactment of no-fault divorce, increased the incentive to falsely accuse the other parent of serious dereliction of parental duty. Id. at 106 (citing C. Gordon, False Allegations of Abuse in Child Custody Disputes, 135 NEW L.J. 687 (1985) (“For many parents engaged in seriously contested child custody disputes, false allegations of child abuse have become an effective weapon for achieving an advantage in court.”)) ↩
- Wardle, supra note 10; John E.B. Myers, Allegations of Child Sexual Abuse in Custody and Visitation Litigation: Recommendations for Improved Fact Finding and Child Protection, 28 J. FAM. L. 1, 20-22 (1990) (describing increasing number of child sexual abuse allegations in custody cases, and noting that while 8% of all child sexual abuse allegations are false, as many as 50% of those made in custody cases are false): see also A. Green, True and False Allegations of Sexual Abuse in Custody Disputes, 25 J. AM. ACAD. C. PSYCHIATRY 449 (1986); E. Benedek & D. Schetky, Allegations of Sexual Abuse in Custody and Visitation Disputes, in EMERGING ISSUES IN CHILD PSYCHIATRY AND LAW 145 (E. Benedek & D. Schetky eds., 1985); David Jones & Ann Seig, Child Sexual Abuse Allegations in Custody and Visitation Disputes, in SEXUAL ABUSE ALLEGATIONS IN CUSTODY AND VISITATION CASES 22 (B. Nicholson & J. Bulkley eds., 1988); Debra Cassens Moss, Are the Children Lying? A.B.A. J. 59 (May 1, 1987) (observing that children are manipulated into making false sexual abuse allegations in custody disputes.) ↩
- Wardle, supra note 10 at 108-09. ↩
- It has also been pointed out that the freedom no-fault divorce gives adults neglects the rights of children. See, e.g., BARBARA DAFOE WHITEHEAD, THE DIVORCE CULTURE 184, 190 (1997) (“Divorce abrogates children’s rights to be reasonably free from adult cares and woes, to enjoy the association of both parents on a daily basis…. |D|ivorce involves a radical redistribution of hardship, from adults to children, and therefore cannot be viewed as a morally neutral act.”) ↩
- L.M. Fenton, No-fault divorce? It’s about time, SALON (June 17, 2010), retrieved from http://www.salon.com/2010/06/17/no_fault_divorce_new_york_open2010/ on November 18, 2012. ↩
- It is not clear why it is believed that requiring proof of fault would not make it more difficult for abused men to leave the women who abuse them. ↩
- Erin R. Melnick, Reaffirming No-Fault Divorce: Supplementing Formal Equality with Substantive Change 75 IND. L.J. 711, 717-18 (2000) (arguing that “no-fault divorce denies a battered woman the opportunity to give voice to her abuse, it simultaneously reinforces stereotypical images of battered women through her court-imposed silence”); see also Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 MICH. L. REV. 1, 45-46 (1991) (“no-fault divorce laws may have indirectly contributed to cultural stereotypes of battered women by removing public blame of the perpetrator of the violence. Once the man as bad actor disappears, it is easy to shift the focus to
the woman.”) ↩
- Id. ↩
- Tim O’Brien, Help Child Support By Altering Divorce Laws, DETROIT NEWS (May 22, 2001) ↩