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Journal Issue: Children and Divorce Volume 4 Number 1 Spring/Summer 1994

Historical Perspective and Current Trends in the Legal Process of Divorce
Sanford N. Katz

Divorce Procedure

The Shift from Adversarial to No-Fault Divorce

Until the introduction of no-fault divorce, American divorce procedure had been and, in instances where the action is for a fault, still is based on the adversarial model. This model assumes protagonists: each party, free of fault, suing the other in court. American law has never adopted a transactional approach to divorce which would allow a husband and wife to enter into a private divorce agreement without any official involvement (like a judge or a court clerk) at all.14 With the adversarial model came a body of law based on English equity principles.15 For example, under a fault system, among other limitations, divorces could not be consensual, and a divorce could be defended and defeated because of the conduct of the plaintiff (the moving or petitioning party). Further, years ago, if both plaintiff and defendant were guilty of fault, theoretically, unless changed by statute, neither could get a divorce.16 The old English adages applied in divorce: one must do equity to receive equity, and one must come into court with clean hands. Divorce actions have been described as resembling those for torts (civil wrongs). To recover in tort, one must show that one was not at fault or has not contributed to the wrong.

When a fault-based system of divorce was the exclusive method of obtaining a divorce, evidence for formally proving grounds—for example, cruelty or adultery—was critical. If the ground was not proven, no divorce could be granted. Because of the strict requirements for cruelty and adultery, the grounds were often difficult to prove unless there was secret collaboration with the defendant. In the case of adultery, which was the only ground for divorce in New York until 1967,17 it was not uncommon for a spouse to fake an adultery scene. The situation was so bad in New York that, as early as 1945, the Committee on Law Reform of the Association of the Bar of the City of New York recommended divorce reform to the state legislature. A portion of the report read: "We . . . urge a liberalization of the divorce laws under proper legal sanctions. We do so in the hope that we may thus eliminate what has come to be recognized as a scandal, growing out of widespread fraud, perjury, collusion, and connivance which now pervade the dissolution of marriages in this State."18

In states where there were a number of divorce grounds and a judge wanted to grant a divorce but was not presented with persuasive evidence, he or she might interpret the ground for divorce broadly, for example by interpreting the ground of cruelty (which customarily required some evidence of physical force) to mean emotional or mental distress without any physical manifestations such as a slap or a punch. The result was that divorce cases were often considered illustrations of two processes occurring at the same time. On the level that could be observed in court, there was the formal process of a divorce case: lawyers and litigants going through the motions of a civil law suit. On another level, there was private understanding between lawyers and litigants that there would be a certain amount of lying and perjury. Because of this mutual pretense, divorce practice was considered to be low level, and judges assigned to hear divorce cases were often thought to be part of the legal charade. Thus, they were not very competent and had little respect for the legal system.19

Fault-based divorce, the model that existed in the United States for years and still exists (in some instances side by side with no-fault) in about 30 states,20 not only affected the grounds for obtaining a divorce but also influenced the assignment of children and property.21 It was hard to separate the evidence for proving a ground like cruel and abusive conduct or adultery from the litigation over who was assigned custody of what child and how much a spouse would have to be paid in alimony. At least one state, Florida, by statute denied a woman alimony if she was proven to have committed adultery. And appellate case law is filled with cases in which a spouse is denied custodial rights in the first instance or after a modification hearing on the basis of moral turpitude.22

During the 1960s and early 1970s, the legal profession and state legislatures came to realize the deplorable state of divorce laws and practice.23 Respect for divorce law and procedure, if there ever really was any, had declined. Reform was needed not only in terms of changing substantive laws, like grounds for divorce, but also with regard to the process of divorce. The thought was that the law should not mask deception but should, as far as possible, reflect reality. It was at this time that the Governor's Commission in California found that the fault-based divorce laws in effect in California were no longer viable and should be replaced with laws that allowed a divorce without a showing of fault. Thus, in 1969, California became the first state to implement a divorce law without any fault-based grounds for divorce. Although, because of strong resistance from some segments of society, only a few states have entirely done away with fault as a basis for divorce, all 50 states have enacted some type of no-fault provisions as part of their divorce laws.24 Whether a client chooses a fault or no-fault divorce depends on the facts of the case and the laws specific to fault and no-fault divorces.

At the same time that no-fault divorce laws were being enacted, a major procedural reform was taking place: changes in residency laws. Prior to 1970, it was not uncommon for a state to have a one- or two-year residence requirement before a person could file for divorce. The idea behind such residence requirements is that a state should have an interest in the status of a marriage before it allows its courts to be used for dissolving that marriage. In addition, residence requirements provide a certain amount of time to consider divorce. Further, for practical reasons, long residence requirements, like two years, act as a deterrent to divorce and reflect a policy of marriage being a serious undertaking, not easily dissolved.25 Nevada, with a short residency requirement of six weeks, had the dubious distinction of being the "divorce mill" state, and "the road to Reno" became another way of saying "the road to divorce."26

Reducing the length of time a person must live in a state before he or she may petition for a divorce is a reflection of that state's view of marriage and divorce. The longer the residence requirement, the more likely it is that the state views marriage as a serious institution worth preserving. In addition, a long residency requirement discourages persons not having lived in the state for a certain length of time from seeking a divorce there. The theory, rightly or wrongly, is that a state has an "interest" only in marriages of its domiciliaries. The general view has been that a divorce action should not be like a tort action. A tort action (a transitory action) allows the damaged party (plaintiff) to sue the wrongdoer (tort-feasor) wherever he or she can be found. No state takes the position that divorce should occur in a state that has no contact with the marriage at all, although the statutory trend seems to be clearly in the direction of shortening the time necessary to live in a state before one can sue for a divorce.27 As more and more states either relax their grounds for divorce or adopt a liberal no-fault system, the need to leave a state to get a divorce—what the law terms (with negative connotations) migratory divorce— becomes less and less important.

No-Fault Divorce

It is an oversimplification to say that once a no-fault system of divorce is in place, the idea of fault is abandoned. It is important to note that there are two kinds of no-fault divorce statutes: those that allow one of the spouses to contest the claim that the marriage is "irretrievably broken" or that the spouses are "incompatible," and those that do not allow any contest. In the first kind, if one spouse claims that her marriage is "irretrievably broken" and her husband claims it is not, the wife must prove her allegation by what amounts to factors that might have been satisfactory to show a fault ground.28 Where there is no contest, one spouse's allegation of "incompatibility" might be sufficient for a judge to grant a divorce. The pure no-fault model—that which does not provide for a contest—basically allows one spouse to leave the marriage at will. It also minimizes the role of the judge.29 But it must be emphasized that no-fault in this context only operates to terminate the marital relationship. It does not affect the assignment of property or the custody of children, both of which are separate issues.

There has been a great deal of discussion in the academic literature as to the effect of no-fault divorce on the divorce process and on society as a whole. It is generally believed that no-fault divorce has decreased the acrimony and hostility between the spouses and civilized the process.30 There is no more need for charades. Two questions have been raised with regard to the social implications of no-fault divorce. The first concerns the rate of divorce: Has the advent of no-fault divorce increased the divorce rate? A second question is whether a pure no-fault divorce economically favors one spouse over another. There is no clear and simple response to the first question. Most researchers have concluded that there is little if any causal relationship between the introduction of no-fault legislation and the rise of divorce even though, during the years in which this legislation was enacted (1970 to 1975), there was a substantial increase in the number of divorces, from 2.5 per 1,000 population in 1965 to 3.5 per 1,000 in 1970 and 4.8 per 1,000 in 1975.

The explanation most frequently given for stating that no-fault legislation had little effect on the divorce rate is that fault laws were ineffectual and were not complied with anyway. Thus, removing fault provisions or adding a no-fault provision would have little impact on the number of divorces rendered. One scholar who has reviewed the significant research in the field and conducted his own inquiry differs from the conventional view.31 He found that in 31 states there was a correlation between the no-fault divorce legislation and the rate of divorce. However, he could give no clear explanation as to the reason. There are too many variables, including individual states' residency requirements and the actual no-fault standard in each state, as well as a particular state's political, social, and cultural make-up. He has written that "it is not feasible to discern why some no-fault laws did and others did not affect the divorce rates.... There is a sizable gray area in which individual laws may or may not have impacts."32 In other words, it appears that the most accurate statement that can be made is that no-fault divorce laws apparently stimulated divorce in some states but failed to do so in others.31

As to whether no-fault divorce favors one spouse or another, again it can be said that it is not absolutely clear whether this is so or not. One researcher has maintained that, at least in California, divorced women are economically worse off than their divorced husbands, perhaps because judges, using their discretion, have awarded inadequate support orders.33 A more recent study concludes that the effects of no-fault on the economic condition of divorced women "were either modestly benign or neutral."34

While no-fault divorce may not have a major adverse effect on women, this does not mean that the same can be said about divorce itself. There seems to be no dispute in the literature about divorce's negative effect on women.35 The reasons for this latter phenomenon have much to do with the fact that the social and financial position of the wife, who usually has custody of the children, tends to be frozen at the time of divorce, while the husband's position is more fluid. In other words, a working husband may have his alimony and child support payments calculated on the basis of his existing job at the time of divorce. There may be little or no consideration of his future finances such as his working overtime, receiving a promotion, or taking a second job. If any of these eventualities do occur and a divorced wife needs additional support for herself and her child, she must seek a modification of her alimony decree and child support order on the basis of "changed circumstances."36 However, such modification actions would require her to obtain counsel, collect evidence, and secure a hearing date. Doing so takes money and time, namely to pay a lawyer and to obtain a date for a hearing.

If a divorced wife chooses to work outside the home after divorce, she may find that her years out of the commercial work force have put her in an economically disadvantageous position compared with men and women who did not leave the labor force to raise children.37 Divorced husbands do not necessarily have the same experience. In fact, men who stayed in the work force throughout their marriage may have more opportunities to increase their income by taking advanced training in their particular career and being promoted. In addition, men tend to remarry more quickly than divorced women and may benefit financially from their new wives, especially if they are women working in the commercial world. (For further discussion of no-fault divorce, see the article by Carbone in this journal issue.)