What are the major differences between fault and no-fault divorces and which one should become more universally standard?
It used to be that one could not get a divorce without establishing “fault” as grounds for divorce. “Fault” had a particular meaning in the context of divorce.
Generally, fault-based laws grant a divorce if one person is found guilty or “at fault,” and the other spouse is found “innocent.” Consent of the innocent party is required before a divorce is allowed. Finding a party guilty of one of the available and vague statutory grounds for divorce, such as adultery, abandonment, or a protracted separation period, often is difficult and expensive. Social scientists criticized the fault-based system as contributing to the protracted acrimony between former partners who continued to be in contact through parenting their children. Officers of the court suspected that individuals who wished to divorce under fault-based laws often did so through perjury and the falsification. of evidence to get around strict statutory hurdles.
No-fault divorce was conceived as a way to make divorce less acrimonious and restrictive, rendering the legal environment neutral and noncoercive. No-fault divorce laws do not require a finding of the innocence or guilt of either party. Claimants can file for divorce generally on the basis of the “irretrievable breakdown” of the marriage or the “incompatibility” of the parties without proving one spouse is at fault. Both individuals are potentially responsible for the care of their children, physically and monetarily, and spousal support and property can be awarded on the basis of the financial resources of each party, rather than on the basis of their guilt or innocence.
Although I’m sure everyone would agree that no-fault divorce was motivated by good intentions, many also agree that no-fault divorce may have made divorce a little too easy, causing the end of marriages that should not have broken up, with the divorce doing the spouses and children more harm than good.
Stephanie Coontz’s research indicates that successful partnerships presently work better and are more effective than marriages of the past. “They’re more fair, more loving, more intimate and more protective of children,” Coontz says. “So that’s one piece of good news.” That good news, though, applies only to about half of married couples; the U.S. divorce rate hovers at about 45 percent. That’s down from the 1970s and ’80s, but some of that decline can be attributed to fewer trips to the altar.
“Marriage is not always the better option,” Coontz states, “but we can save more healthy marriages than we do. It’s a huge challenge, but we can rise to it.”
(The Origins of Modern Divorce, Coontz, Stephanie Fam Process. 2007 Mar;46(1):7-16).
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