Is New York Ready for No-Fault Divorce?
Stephanie [censored] <--weird her last name is C o o n t z. She�s local. Met her even.
NYT: June 16, 2010


What it will mean for men, women and children if the state makes divorces easier.

FORTY years after the first true no-fault divorce law went into effect in California, New York appears to be on the verge of finally joining the other 49 states in allowing people to end a marriage without having to establish that their spouse was at fault. Supporters argue that no-fault will reduce litigation and conflict between divorcing couples. Opponents claim it will raise New York�s divorce rate and hurt women financially.

So who�s right? The history of no-fault divorce may provide some answers as the New York State Assembly takes up its versions of the divorce legislation passed by the Senate on Tuesday. Before no-fault, most states required one spouse to provide evidence of the other spouse�s wrongdoing (like adultery or cruelty) for a divorce to be granted, even if both partners wanted out. Legal precedent held that the party seeking divorce had to be free from any �suspicion that he has contributed to the injury of which he complains� � a pretty high bar for any marital dispute.

In 1935, for example, reviewing the divorce suit of Louise and Louis Maurer, the Oregon State Supreme Court acknowledged that the husband was so domineering that his wife and children lived in fear. But, the court noted, the wife had also engaged in bad behavior (she was described as quarrelsome). Therefore, because neither party came to the court �with clean hands,� neither deserved to be released from the marriage.

As the Maurer case suggests, such stringent standards of fault often made it easier for couples who got along relatively well to divorce than for people in mutually destructive relationships. Cooperating couples would routinely fabricate grounds for their divorce, picking one party as the wrongdoer.

This strategy was so common in the 1950s that divorce cases seemingly gave the lie to Tolstoy�s famous observation that every unhappy family is unhappy in its own way. �Victim� after �victim� testified that the offending spouse had slapped him or her with exactly the same force and in exactly the same places that the wording of the law required. A primary motivation for introducing no-fault divorce was, in fact, to reduce perjury in the legal system.

Initially, some states limited no-fault divorce to cases in which both partners wanted to dissolve the marriage. In theory, limiting no-fault to mutual consent seemed fairer to spouses who wanted to save their marriages, but in practice it perpetuated the abuses of fault-based divorce, allowing one partner to stonewall or demand financial concessions in return for agreement, and encouraging the other to hire private investigators to uncover or fabricate grounds for the court. Expensive litigation strained court resources, while the couple remained vulnerable to subjective rulings based on a judge�s particular opinion about what a spouse should put up with in a marriage.

Eventually every state except New York moved to what is in effect unilateral no-fault, wherein if one party insisted that his or her commitment to the marriage had irretrievably ended, that person could end the union (albeit with different waiting periods). New York has been the holdout in insisting that a couple could get a no-fault divorce only if both partners agreed to secure a separation decree and then lived apart for one year. Otherwise, the party who wanted the divorce had to prove that the other was legally at fault.

In every state that adopted no-fault divorce, whether unilateral or by mutual consent, divorce rates increased for the next five years or so. But once the pent-up demand for divorces was met, divorce rates stabilized. Indeed, in the years since no-fault divorce became well-nigh universal, the national divorce rate has fallen, from about 23 divorces per 1,000 married couples in 1979 to under 17 per 1,000 in 2005.

Even during the initial period when divorce rates were increasing, several positive trends accompanied the transition to no-fault. The economists Betsey Stevenson and Justin Wolfers of the University of Pennsylvania report that states that adopted no-fault divorce experienced a decrease of 8 to 16 percent in wives� suicide rates and a 30 percent decline in domestic violence.

Social changes always involve trade-offs. Unilateral divorce increases the risk that a partner who invests in her (or more rarely, his) marriage rather than in her own earning power, and does not engage in �bad behavior,� may suffer financially as well as emotionally if the other partner unilaterally ends the marriage. When courts have not taken this sacrifice into account in dividing property, homemakers have been especially disadvantaged.

Fairer division of marital assets can reduce the severity of this problem. And fault can certainly be taken into account in determining spousal support if domestic violence or other serious marital misbehavior has reduced the other party�s earning power.

Still, the ability of one partner to get a divorce over the objections of the other may create an atmosphere in which people think twice before making sacrifices that will be costly if the marriage ends. Professor Stevenson found that in states that allow unilateral divorce, individuals tend to be slightly less likely to invest in marriage-related capital, like putting the partner through school, and more likely to focus on building individual, portable capital, like pursuing their own education or job experience.

Unilateral divorce has decreased the bargaining power of the person who wants the marriage to last and has not engaged in behavior that meets the legal definition of fault. On the other hand, it has increased the bargaining power of the person who is willing to leave. So while some marriages end more quickly than they otherwise would, other couples enter marital counseling because one partner�s threat of divorce convinces the other that it is time to work seriously on the relationship.

Contrary to conventional wisdom, it is more often the wife than the husband who is ready to leave. Approximately two-thirds of divorces � including those that come late in life � are initiated by wives. Paula England, a senior fellow at the Council on Contemporary Families, found that surveys that separately ask divorced wives and husbands which one wanted the divorce confirm that more often it was the woman who wanted out of the marriage. This jibes with research showing that women are physiologically and emotionally more sensitive to unsatisfactory relationships.

It�s true that unilateral divorce leaves the spouse who thinks the other�s desire to divorce is premature with little leverage to slow down the process or to pressure the other partner into accepting counseling. It allows some individuals to rupture relationships for reasons many would consider shallow and short-sighted.

But once you permit the courts to determine when a person�s desire to leave is legitimate, you open the way to arbitrary decisions about what is or should be tolerable in a relationship, made by people who have no stake in the actual lives being lived. After all, there is growing evidence that marital counseling can repair some marriages even after infidelity, which New York has long accepted as a fault sufficient to end a marriage. But that does not mean New York should reduce its existing grounds for divorce even further.

A far better tack is to encourage couples to mediate their parting rather than litigate it, especially if children are involved. In a 12-year study of divorcing couples randomly assigned to either mediation or litigation, the psychologist Robert Emery of the University of Virginia and his colleagues found that as little as five to six hours of mediation had powerful and long-term effects in reducing the kinds of parental conflict that produce the worst outcomes for children. Parents who took part in mediation settled their disputes in half the time of parents who used litigation; they were also much more likely to consult with each other after the divorce about children�s discipline, moral training, school performance and vacation plans.

Paradoxically, people who went through mediation were also more likely to express regret over the divorce in the ensuing years than those who litigated. But New York legislators should face the hard truth that there are always trade-offs in the imperfect world of intimate relationships. To my mind it is better to have regrets about the good aspects of your former marriage because you were able to work past some of your accumulated resentments than to have no regrets because you had to ratchet up the hostility to get out in the first place.

Related Topic: Divorce, Separations and Annulments


Stephanie C o o n t z, a professor of history at Evergreen State College, is the author of �Marriage, a History: How Love Conquered Marriage� and the forthcoming history �A Strange Stirring: The Feminine Mystique and American Women at the Dawn of the 1960s.�

I've been thinking about 'no-fault divorce' a lot (this week especially) and I think it's a horrendous law.

Marriage is a legally binding contract (as well as a vow before God), yet if one person chooses to throw it all away for a good time or something 'better' then NO ONE IS AT FAULT???? Really?

Someone has to be at fault for all the heartache a divorce causes. Someone has to be at fault for the destruction a child feels when their family is torn apart. Someone has to be at fault for the financial ruin that often comes with divorce. Someone has to be at fault for the life-long consequences brought on by betrayal, and the innocent victims that are left behind.

Yet, in my state, the law says that it's no one's fault. Even better, the law seems to say you can throw your marriage away and come out smelling like a rose if you happen to play your cards right and get a good lawyer.

No fault, my a$$.

I hate the notion of no fault for the same reasons Sidney stated. It seems ludicrous that there is less at stake to terminate a marriage contract than a credit card contract.

On the other hand, battered women do need to be able to leave without going through the ringer trying to prove abuse. When I was divorcing my first XH, though I had hospital records, witnesses, photos of a bloody hotel room, and plenty of other rock solid evidence, my lawyer advised me that it was virtually impossible to prove abuse short of the cops walking in on my dead body with my blood still on his hands. That was over 20 years ago and things have changed a lot. I hate to think that someone might be trapped in this situation.

But to go from one extreme to the other just doesn't make any sense. My recent divorce was do-it-yourself and involved no lawyers other than the one I paid $200 to look over the agreement I wrote myself but that wasn't a legal requirement.

Why don't they even look at treating it like a business contract where there are penalties for someone who breaches it? You could still have the "amicable divorce" (though I'm sure that's a falacy) with the 50/50 split of everything. But when someone decides one day that they don't want to be married, it doesn't leave the other hanging in the lurch to deal not only with the pain of betrayal and abandonment, but the loss of 50% of everything they own, the loss of the second income and the loss of 50-90% of time with their kids! It's just not right to wake up to something like that.

Someone who breaks their vows, or even simply unilaterally wants out, should pay some sort of penalty to get out. In the case of adultery, they should walk away with nothing at all, but I'd be happy if they ruled it 75/25 in favour of the BS and child custody arrangement decisions to be weighted in favour of the BS. It would never happen because once again, people would be left proving adultery. Though I'm sure there'd be some waywards who would pay the penalty and get out anyway. My WXH would have - and I'm pretty sure I did better than 75/25 in our agreement but I was very careful not to write certain things down or get accurate assessments of others for the very reason that he'd be legally entitled to it.

And the courts need to know that a wayward parent is a very, very bad parent. They don't seem to understand this.

I think people can and should be able to implement some things like this in a prenuptial agreement. And I wish such agreements were seen as a more normal part of marriage. I don't know whether the courts interfere with such agreements or not; it wouldn't surprise me if they did. I don't think they should be allowed to.

That way, people could set up such terms as they pleased. If they really wanted to agree to a "no-fault divorce marriage," then they could specify that. Others could specify terms like you gave, which I think are very reasonable.


Yes. I dreamed of my grandmother two nights ago; first time in a long time ago I've thought of her. She was a wayward most of her life, since long before I was born. Having come to Marriage Builders, I know understand for the first time how much of her self-centered and irrational behavior was probably due to this, even though I don't think she was actively sexually wayward during my lifetime. (I could be wrong on that.)

Because my mother was never able to cut the ties to her wayward mother, she eventually broke down and became wayward herself.

I don't see my mother and haven't for twenty years, and I hope I never do again. I still resent the courts trying to pressure me to spend time with my wayward mother. I may have been a minor at the time (in their opinion), but I was always a human being with RIGHTS.

It's sad that you need a prenup to provide you with the security that was supposed to come with the marriage. My only issue with prenups in principal is that it is about planning to fail. I suppose I still have the crazy notion that marriage is for life. Who'dda thunk that a twice divorcee would have any concept of permanence in marriage.

Mine, too.

I think we kind of need a social shift to the idea that a marriage is a contract, which like any contract includes penalties for parties who don't keep the contract. Basically marriage and prenup all in one, with failure recognized as an exceptional situation, not the norm.

And ..

While we're wishing ...

I want a pony!

I don't know why anyone wouldn't get a prenup before marriage. I've had 2 relatives that were very very successful prior to marriage. Both of them had their wives cheat, divorce, and then run off with the other men. Guess what? The wives got half of everything...including what the husbands brought into marriage.

Ridiculous

It truly is ridiculous. The way the laws are set up, if there's any money at all involved (or not) then there is no incentive to stay married but there are huge incentives to walk away.

I completely agree with with getting a prenup! I'll never get married again, but if I did I would not hesitate to get one. And I will encourage both of my kids to get one when they marry.

No Fault divorce should be abolished. If two people want to get divorced, then fine, let them. When situations like adultry, abuse. etc, etc, then those should be acknowledged in the divorce, the settlement, etc.

I have long thought that divorce should be easy.

Getting married should be tough.

If people had to go through the massive wrangling BEFORE they got married, the whole problem of wholesale divorce might disappear.

I think the problem is that prenups are seen as "planning to fail" rather than "promising to care for you and agreeing how you'll pay for your crimes if you don't keep your promise." If we could get everybody to see it as the latter, it would probably be much more common.

We were discussing this yesterday on a long drive, and my wife commented that relying on the legal system alone is basically like relying on a badly-written default prenup agreement. Written for you by other people. With no input from you. Since it's voted on by society at large, homosexuals, anti-marriage crusaders, and waywards all got as much input into how the dissolution of your marriage should be handled as you did!!! That thought certainly put a prenup in perspective.

My DD, who is 14, was so angry after I was telling her about how much WH (her step-dad) might be entitled to in the divorce that today she wrote a letter to the governor!!! LOL

Now this is a kid who is very laid back and pretty passive, but when she heard about the 'no-fault' law she immediately recognized how absurd, unfair and unrealistic it is.

I was willing to have a prenupt with my second marraige. Pre-nupt are essential when there are existing children and assets. In Maryland, if you die intestate, the spouse gets everything. That means children from a previous marraige could have nothing. In PA, you can't leave more than half of your estate away from your spouse unless you have a pre-nupt. Often that pre-nupt has to have a transfer of goods to make it legally binding, unless both parties bring approximately equitable assets.

As for no-fault.... I think there's probably some good middle ground. Like, if you can prove your spouse was a dirtbag, good. If you were a dirtbag too, you can still get a divorce. If neither was a dirtbag, then there's a waiting period.

Or maybe, we can have divorce be no-fault, but allow ex-spouses to sue for alienation of affection and breach of contract. "You promised to keep yourself solely unto me. You whipped it out for any available piece of tail, and I'm suing you because you violated the contract." And if you end up with an STD, you should get sizable damages.

Isn't this supposed to be what your vows are for? The problem with no fault is that marriage has become nothing more than a formality. You can promise whatever you want at the altar, but it truly is meaningless when one person can simply change their mind at some point down the road. How is this different than common law?

In response to GG who got a prenup for her 2nd marriage to protect her kids, here in Canada the common law arrangement is what protects your kids. The only difference between common law and marriage is that your assets, upon death, go to your kids rather than your common law spouse. Other than that, it's identical.

So why bother getting married? Believe me, it makes me very sad to write that because I believe in marriage, but certainly what marriage is in this society is NOT what I've grown up to believe.

If you hired a contractor to fix your roof, and you got an estimate and warranty and checked his credentials and entered into a contract with him, then if the roof leaked, or if he did a shoddy job, you would have recourse legally to either get it fixed or get your money back.

If you hired your buddy's unemployed cousin who says he knows what he's doing, pay him under the table and the roof leaks, you're stuck with it. Isn't this supposed to be the difference between a contract (marriage) and no contract (common law)?

Well, it's not.

Yes. What I am saying is that people should increase the care they are vowing by not just vowing to care but vowing "to care or else make massive forfeitures." Which vow inspires more confidence:

* I vow to be faithful to you until death do us part, and if I do not, I hereby forfeit all of our marital property and custodial rights to any children we have
* I vow to be faithful to you until death do us part, and if I do not, the courts can sort it all out

And, yes, you can promise whatever you want at the altar, so I'm saying that it should be a legal contract.

Surely that's a will, not a pre-nup? Pre-nups deal with divorce. Wills deal with your assets upon death.

I agree with most of this. However, I do think one should prove the abuse for two reasons.

#1. If you don't prove abuse, then there is legitimate reason to believe one just wants out.

#2. It protects the abandoned spouse against false charges. One just cannot say, I'm being abused, so treat me differently in the divorce. In the US, due process, being able to face your accuser and proving the crime (and abuse is a crime) is a feature of our legal system.

Making a special status for abuse victims that allows them to accuse the alleged abuser and not have to meet the standard of proof beyond a reasonable doubt impinges on the rights of the accused.

#3. If someone is an abuser, it SHOULD be proven so it's a matter of public record. If someone is abusive, just quietly divorcing them does nothing to protect society.

Sure, it's difficult. Yet I think we have a civil duty to alert society about such folks and prove their guilt.

My idea has always been, if there is provable abuse or infidelity, the guilty party gets NO marital assets but is still on the hook for marital debts and child support. They get nothing that was produced as a part of the marriage except for debt.

Someone who just wants to leave the marriage, they get the same deal as if they were guilty of marital misconduct. They take the assets they have when they entered the marriage, their share of the debt, and they pay support for any children.

The children, the assets, etc are products of the marriage. Anyone who wants to leave the marriage is knowingly leaving all products of the marriage as well.

The added benefit of this is if some is abusive, the victim is compelled to prove this in order to gain primary or sole custody of the children.

Anything less is not fair to all parties involved.

Being a victim does not give special rights. We have far too many who 'claim' they are victims. It's time we require victims to actually prove their status.

There are some of us who believe marriage is covenant. Personally, if one is married in the church, then the church, not the courts should be the one who decides how the marriage is processed.

I'd like to see covenant marriages in more states, with laws on the books that say if both parties freely enter into a covenant marriage, that the civil legal system WILL NOT grant a divorce, that the marriage is governed by the rules of the faith under which the parties freely chose to marry.

Finally, I've always thought of the pre-nup as if it were a pledge of what I or my spouse should provide the other as just compensation should I or she fail to keep our vows.

I never saw it as planning to fail, but rather planning for what would happen should someone fail. Pledging security, not planning to fail.

We wear seat belts not because we are planning to have a car accident. We wear them to protect us in case we have one.

I see a pre-nup as simply putting on the seat belt.

I agree completely.

Do be aware that many are using the term "covenant marriage" to mean marriage under a particular set of statutes that make divorce more difficult (i.e., require a longer waiting period, require marriage counseling, or any other sane or insane requirements the state wants to throw at them). I'm not sure that would meet your criteria.

I would put this near the top of the list too. Any proven spouse or child abuser should be publicly known as such, in excruciating detail, by everyone.

As far as the proving goes, in 99.9% of cases it is relatively easy, nowadays. Micro cameras, voice activated audio recordings, PIs. The few hard cases are usually religious community, religious compound or extreme isolation based. Which are the potential situations society ought to be watching much more closely and thoroughly than it has been.


Oh, adultery IS spouse abuse. Apply the above in spades.