The Misconception of No-Fault Divorce

The greatest misconception of no-fault divorce is that “fault” doesn’t matter in a marriage.  Several of my clients have interpreted this to mean that in the past, they would have “received more” if they can prove their husbands cheated.

This is incorrect.  The “fault” and “no-fault” as referred to in divorces has nothing to do with who is right or wrong.  Rather, it applies to the legal standard with which you can obtain a divorce.

Prior to 1969, in California, in order to get a divorce, you had to prove one of the following:  1) adultery, 2) extreme cruelty, 3) willful desertion, 4) willful neglect, 5) habitual intemperance (also known as regular drunkenness), 6) conviction of a felony, and 7) incurable insanity.  Absent successful establishment one of these grounds, you would NOT be able to divorce your spouse.  In the past, to leave your spouse, you had to prove that they cheated on you, or deserted you.  The proponent of the divorce would put on evidence of one or more of these grounds for divorce, and the opposition would defend against it.  This caused family courts to be a shitstorm of allegations more apropos for Jerry Springer, and induced many attorneys to commit perjury in order to prove one of the seven grounds to divorce their clients.

Governor Ronald Reagan changed all that when he signed the Family Law Act of 1969.  Under this new law, neither spouse had to prove adultery, cruelty, desertion, neglect, intemperance, felony or insanity in order to obtain a divorce.  And, neither one had to obtain consent of the other.  If one wanted out, they were granted the divorce.

Last month, I mediated a case where one party was very upset the other was leaving.  Both of them were in their 80’s and their family home of over 50 years (purchased for $60,000, but now worth 3 million) had to be sold, because (as is the majority of the cases in Los Angeles), neither one can afford to “buy out” the other with their modest pensions and lack of retirement.  Labeling himself as the “deserted spouse”, he was understandably very upset with his wife.  “It’s all about her.  She wants out, and she gets out.  So let her leave!  Why do I have to go to? Why must I pay her for leaving the marriage, the house?  Where am I suppose to go?  Why is divorce a one-person show?”  This elder gentleman’s desperate cries fell on the deaf ears of the law.

It’s true, after Reagan signed the Family Law Act of 1969,  the rate of divorce skyrocketed 250 percent from 1960 to 1980, according to a 50-state survey conducted by The Journal of Marriage and the Family.  Today, about 1 of 2 marriages end prior to death.

Opponents of “no-fault divorce” criticize it for making divorce “too easy”. Perhaps.  But there are several pros to this model: 1)   States that adopted no-fault laws saw a decline in the rates of domestic violence.   2) In marriage where there is abuse, theoretically, it’s easier for victims to “leave”.  3) With less abuse comes less conflict, which means less emotional harm to children whose parents are divorcing.  4) Help reduces the burden of courts to listen to fabricated stories of “abuse” and “cheating”.

Not convinced that “no-fault” is better?  Move to Arizona, Arkansas, or Louisiana.  In these three (3) states, you have the option of entering into a “traditional marriage”, at the end of which is governed by a “no-fault traditional divorce”, or a “covenant marriage”, at the end of which is governed by a different set of laws, akin to the “fault” model.

Prior to entering into a “covenant marriage”, the couple must attend mandatory counseling, which teaches the nature, purposes, and responsibilities of marriage.  Both parties must sign a statement declaring that “covenant marriage is for life”.   To leave a covenant marriage, the spouse requesting the divorce must prove they attended marital counseling.  He/she must also prove one of the following:  1) The other spouse has committed adultery.        2) The other spouse has committed a felony. 3)The other spouse engages in substance abuse.  4) The other spouse has physically or sexually abused the spouse or a child.  5) The spouses have been living separately for a minimum amount of time specified by law (one or two years, depending on the law of the state).

Interestingly, though the option for covenant marriage exists in these 3 states, very few people opt for covenant marriage.

As a proponent of intact marriages, my gut instinct is to favor the return to a more traditional society, where marriage can only be ended for valid reason (“valid” being one of the ones articulated in the once “fault-based divorce” states).

However, the selfish lawyer in me does not believe the “fault-based” system is better.  The emotional nature of divorce is already too much.  I cannot imagine a world where I have to prove someone cheated in order to divorce them.  I do think marriage counseling should be mandatory prior to filing for divorce.  California would benefit from a law mandating counseling prior to filing for divorce.

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Kelly Chang Rickert

Kelly Chang Rickert (formerly Kelly Yi-Yi Chang) is the founder of the Law Offices of Kelly Chang, A Professional Law Corporation, a firm dedicated exclusively to Family Law. She has been certified by the California State Bar Board of Legal Specialization as a Family Law Specialist. She is frequently quoted in the media, and is a legal expert for Style Network, TV Guide and MTV on Mel Gibson, Tiger Woods, Britney Spears, Christie Brinkley and Madonna divorce and custody cases.

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