“The fairest rules are those to which everyone would agree if they did not know how much power they would have.” — John Rawls
Unlike other civil actions in which one must assert that the defendant wronged the plaintiff, no fault divorce does not require–indeed does not allow–the court to find fault as a condition to issuing a decree of divorce and the orders contained in that decree.
This simple fact should have a profound impact on divorce policy, but it does not appear to have that effect.
It’s as though judges are so accustomed and habituated to finding fault as a pre-condition to issuing orders that the judges forget that divorce does not ask such of the court.
The policy of divorce courts should be this:
First, the court must by any of its acts or omissions, do nothing to harm to the interests of the family, both collectively and individually.
Second and for the purpose of complying with the duty to do no harm, the court must involve itself in the divorce only to the extent necessary. It must issue only the orders necessary to dissolve the marriage and treat the parties and their minor children (if they have minor children) equitably. The policy should be that the court involve itself only as necessary when intervening in the lives of divorcing citizens. Due process demands this.
All the judge needs to do is:
1) Dissolve the marriage. This does not require the court to make any findings other than that the parties are married and subject to to the jurisdiction of the court. Easy. No value judgments need be made.
2) Divide marital property equitably. That does not require the court to make any findings of fault, and frankly, in most cases equity does not require or allow the court do much more than ensure that the value of the marital property is divided in half between two (2) people. Simple. Add it up, split it up. Spirited debate as to what a proper “division in half” means in the process of deciding the dividend is fair and proper.
3) Divide responsibility for marital debt between the parties. I’ve never bought in to the idea that a “fair” division of marital debt means apportioning responsibility for paying marital debt according to “ability to pay.”
The notion that we may disproportionately divide responsibility for debt so that the spouse who is least able to support him-/herself will not become a public charge robs moral principle Peter to pay moral principle Paul, and that’s just institutionalized hypocrisy.
If a husband earns two times as much as or more than his wife, but the couple buys a car on credit for the wife–which she keeps after the divorce–there is simply nothing fair about making the husband pay that debt after divorce. I understand if the wife cannot afford the loan payments, but that doesn’t mean we make husband pay them instead. That means the couple disposes of the car. Making husband pay all of a debt the couple incurred is, except in rare, exceptional cases, a judicial bait and switch.
Nevertheless, for now I am willing to hold my nose and choose to argue other points of policy because “ability to pay” is such an entrenched idea. Once other policies are reformed, I’ll turn my attention to rejecting the ability to pay doctrine.
So we can apportion responsibility for marital debt in various ways that are all at least arguably equitable:
a) liquidate as many marital assets as reasonably possible to reduce the marital debt load before apportioning debt between the parties;
b) divide marital debt equally between the two parties;
c) party who is awarded the encumbered asset is ordered responsible for satisfying the encumbrance. A corollary to this is that the party who benefited most from incurring the debt pays the debt; if the couple bought a car on credit for the wife–which she keeps after the divorce, she pays the car loan. If the couple bought a big-screen TV because the husband just had to have it to watch sports (and wife was ambivalent about how big her TV is), husband gets the TV, and the debt associated with it.
c) in proportion to income, i.e., if husband earns 75% of the marital income, he pays 75% of the marital debt and wife pays 25% of it; if wife earns 66% of the marital income, she pays 66.5% of the marital debt and husband pays 33.5% of it;
e) party most able to pay is ordered to pay the debt – this makes the most sense from a pragmatic point of view where, for example, one spouse has become chronically ill and unable to earn an income, or where the marital debt is comparatively small compared to one spouse’s income such that that spouse can easily pay off the debt without noticeable adverse effect.
4) Child Custody. I cannot see how such a simple matter has become and allowed to remain so needlessly complex. Well, truth be told, I see quite well how this arose, so it would be more accurate for me to state that I cannot believe how legislators and courts have been so derelict in their duties so as to allow such a simple matter to become and to remain so needlessly complex.
No one has yet been able to explain to me why the mere filing of a divorce action would raise an issue of “which” parent should be awarded custody of the couple’s children.
The spouse seeking the divorce is divorcing his or her spouse, not their children. So why does child custody become an issue at all? To be sure, if a spouse who files for divorce intends to relocate such that the parties cannot share custody, the issue of which party should have primary physical custody can and must be addressed for the sake of the children. Otherwise, it only stirs the divorce pot by fighting over something that need not be fought over.
There is no reason for the court to “award” children to either party unless the issue of parental fitness arises in the course of the divorce action.
Child custody cannot be at issue when there is no basis for it, and no fault divorce is no basis for fighting over child custody.
If the parental presumption has any legitimacy, then it must apply in divorce actions and it must apply to both parents. Neither parent should be deprived of custody of his/her own child unless and until the court finds the parent to be unfit to exercise joint custody and/or that joint custody is not feasible due to circumstances beyond the parties’ control.
In our time, the ideas that divorce must pit one parent against another as a child’s custodian and that child custody is a zero-sum game are illogical and immoral.
Joint legal and joint physical custody are as close to an intact family as a child can get. Where both divorcing parties are fit parents, where joint custody is not rendered impracticable by distance or other clear objective impediments, and where at least one parent wants to exercise joint custody joint the presumption should be that custody is awarded. It is better to leave as much of the parent-child relation intact during and following divorce than to impose by force of the state a radical and artificial re-structuring of it through an award of “sole custody.” Leave it to families, no require families—even broken families—to govern themselves, not be subject to (and consequently dependent upon) judicial fiat to govern the parent-child relationship.
The policy for deciding child custody should be this: courts will not intervene in or interfere with a parent’s right to joint legal and joint physical custody of a child unless 1) a parent asserting his/her parental rights of child custody is found to be unfit; and/or 2) joint custody is shown to be objectively impracticable. A parent who is antagonistic toward joint custody cannot assert impediments of his/her own creation as an argument against joint custody, and if that parent does not renounce and remediate such self-imposed impediments, sole custody will be awarded to the other parent as a matter of pragmatic default.
Courts should not even address the issue of child custody unless parental unfitness and/or objective impracticability can be shown.
And we need to eliminate the profit motive from child custody. It’s easier than critics are willing to admit, but this is the subject of a separate blog posting.
5) Child Support. Irrespective of whether you like Utah’s child support calculation formula, one thing can be said about it: it’s easy to implement, hard to get wrong, and treats both parents the same way, without there being a double standard at work.
6) Alimony. The are two main policies behind alimony: 1) alimony is awarded to prevent the alimony recipient from becoming a public charge; and 2) alimony is awarded to ensure, as much as possible, that the alimony recipient can maintain the standard of living established during the marriage.
I have no quarrel with these policies. I would add that a third policy is needed: a spouse who files for a no-fault divorce cannot profit from the alimony award.
He or she 1) who is married to a spouse who is comparatively wealthier than and/or who earns more money than the other spouse, 2) who seeks to divorce his or her spouse on no fault grounds, but the spouse does not want a divorce, and 3) who seeks alimony does not deserve alimony, or at the very, very least does not deserve much alimony.
Divorcing and seeking alimony from a spouse who is willing to remain married to you is not equitable. I cannot quit my job and yet expect my former employer to continue to pay me a salary because I need the money. I may get a severance to help me make the transition from being employed to being jobless, but were I to argue that since I’ve given 15 good years to my employer, he “owes” me a living, I’d be laughed to scorn. And it is easy to see why. My employer was willing to keep paying me if I held up my end of the bargain, i.e., I stayed an employee.
The idea that a spouse who chooses to leave a faultless spouse can make a claim on that faultless spouse for “support” is ludicrous. The divorcing spouse could have the support of her spouse if she but stays married to him, but instead she wants to have her cake and eat it too. And consider this: the faultless spouse is losing the support of his wife, and no one bats an eye over it. Take the stereotypical divorce setting. Husband has the ability to earn more money than wife by a significant margin. Wife intends to breastfeed the babies. Husband can’t, even if he wanted.
Accordingly (and sometimes for additional reasons, such as religious beliefs, spousal preferences, etc.) husband and wife decide at the time of marriage or when they have their first child that wife will not work outside the home, but will become a full-time homemaker and child caregiver. Husband is clearly as much of a caregiver as is his wife, albeit of a different kind. While wife is the primary physical caregiver, husband is the sole financial caregiver of not only the children, but of the entire family. Credit must be given where it is undeniably due (and yet a shocking number of courts treat the husband’s financial caregiving as it is of no importance in the child custody analysis). Wife, as full-time mother and homemaker, cares for and supervises the children, maintains the order and cleanliness of the marital residence, and prepares meals for the family.
Then this hypothetical wife files for a no fault divorce, claiming that because she “sacrificed” her “opportunities” to work outside the home and bore a child or children, husband somehow owes her in the form of alimony. Never mind that wife chose to be a stay at home mother and homemaker. Never mind that she has her reward for having made this mutually exclusive choice to forego or suspend a career to be a homemaker and full-time mother. Never mind that once she leaves the marriage husband is left without the services and support of the wife. Husband is expected to continue to support the wife even after she leaves the marriage, but wife mysteriously is not held to the same standard.
Some wives (and even some husbands) are clearly deserving of alimony where there is a need on the part of the alimony seeker and the other spouse has the ability to pay. There is a stark distinction, however, between needed alimony and undeserved windfall alimony. My point is merely this: a spouse who files for a no-fault divorce cannot profit from the alimony award.
6) Miscellaneous orders that are pragmatic, do no party any harm, and are fair to both parties. I see no need for such orders, but again, if the worst I can say about them is that “they can’t hurt,” I am not going to belabor the matter.
However, if a miscellaneous provision cannot fully and invariably meet the “it can’t hurt” test, it’s out. This is why I detest imposing “mutual restraining orders” where there is no proven need for them. For example, orders that restrain the parties from “threatening” or “harassing” each other
are duplicative of existing criminal law prohibitions. Such provisions also lead those who read such provisions to assume—fairly—that such provisions are not there as a matter of boilerplate, but to address problems that do not actually exist.
Divorce law in Utah is so voluminous, complex, and confused that it is collapsing under its own weight, crushing the very people it was intended to serve. Divorcing couples and their attorneys are desperate for simplicity, fairness born of predictability, predictability born of fairness, affordability, and speed.
People contemplating a divorce, and their attorneys, are entitled to:
First, a concise, cogent body of statutory and case law that makes divorce a more predictable endeavor for people contemplating a divorce, and for their attorneys. The Utah Code needs to be thoroughly overhauled to eliminate duplicative, contradictory, and ungainly provisions that make the divorce process confused, slow, and unfair.
Second, a process that is efficient, i.e., expeditious and worth the price of admission (and that will naturally follow a concise, cogent, predictable body of statutory and case law).
Third, a policy by which the courts adopt a surgical, minimalist, “if ain’t broke don’t fix it” approach to divorce cases, doing only what is necessary to accomplish the necessary purposes of divorce and nothing more, no matter how tempting. Even divorcing couples (most of them) are better equipped at solving their own problems than is the state. Courts must refuse to cater to (and thus foster) petty disputes that do not rise to the level of essential disputes that can only be duly addressed and resolved by the courts.
 Currently, as far as I can tell, Utah courts do not apply the parental presumption in divorce actions where child custody is at issue. The “parental presumption” arises most frequently in parental rights termination cases or where a non-parent seeks custody of or visitation with a child. The parental presumption should apply in divorce child custody disputes as well.
The parental presumption is articulated in Utah as follows:
[The parental presumption] recognizes “the natural right and authority of the parent to the child’s custody ….” State in re Jennings, 20 Utah 2d 50, 52, 432 P.2d 879, 880 (1967). It is rooted in the common experience of mankind, which teaches that parent and child normally share a strong attachment or bond for each other, that a natural parent will normally sacrifice personal interest and welfare for the child’s benefit, and that a natural parent is normally more sympathetic and understanding and better able to win the confidence and love of the child than anyone else. Walton v. Coffman, 110 Utah at 13, 169 P.2d at 103.
Hutchison v. Hutchison, 649 P.2d 38, 40 (Utah, 1982).
[T]he parental presumption can be rebutted only by evidence establishing that a particular parent at a particular time generally lacks all three of the characteristics that give rise to the presumption: [i] that no strong mutual bond exists, [ii] that the parent has not demonstrated a willingness to sacrifice his or her own interest and welfare for the child’s, and [iii] that the parent lacks the sympathy for and understanding of the child that is characteristic of parents generally.
Kishpaugh v. Kishpaugh, 745 P.2d 1248, 1251 (Utah,1987).
Given the definition of the parental presumption, it is hard to conceive of why this presumption is not applied to the child custody award analysis in divorce actions.
This is one of several reasons why parenting plans, which are statutorily mandated for any parent who seeks joint legal or physical custody, are such a waste of the parties’ and the court’s time.
 Need for alimony being defined as: without alimony the spouse is more than likely to become a public charge (i.e., welfare recipient) or no longer enjoy the standard of living to which she became accustomed during the marriage.