What Is Your Argument for the Legalization of Divorce?

Divorce is a necessity in certain, narrow circumstances (or at least it should be).

Recklessly divorcing is as “right” as is recklessly driving. It happens, but it’s wrong.

Before no-fault divorce became the law, one could not obtain a divorce without having a marital fault-based reason for seeking a divorce. Those “marital faults” were few and specific, though not necessarily the same in every jurisdiction. Here is a list of the most common marital faults that constituted a basis for divorce:

  • impotency of the respondent at the time of marriage;
  • adultery committed by the respondent subsequent to marriage;
  • willful desertion of the petitioner by the respondent for more than one year;
  • willful neglect of the respondent to provide for the petitioner the common necessaries of life;
  • habitual drunkenness of the respondent;
  • conviction of the respondent for a felony;
  • cruel treatment of the petitioner by the respondent to the extent of causing bodily injury or great mental distress to the petitioner;
  • incurable insanity; or
  • when the husband and wife have lived separately under a decree of separate maintenance of any state for three consecutive years without cohabitation.

(these are the fault-based grounds for the divorce as articulated in the Utah Code at Section 30–3–1(3))

Other grounds in other jurisdictions:

  • Conviction of a crime that can result in imprisonment (usually for a year or longer)
  • Contracting a “loathsome disease” (usually a sexually transmitted disease)
  • Mental illness
  • Substance abuse
  • Infertility
  • Homosexuality (for heterosexual married couples) that was concealed from the spouse before the marriage
  • Failure or refusal to support spouse financially
  • “When either party has joined any religious sect or society which professes to believe the relation of husband and wife unlawful, and has refused to cohabit with the other for 6 months together” (this is a ground for divorce articulated in New Hampshire Revised Statutes, Section 458:7 (Causes for Divorce)).

Fault-based divorce ceased to be the only way to obtain a divorce when “no-fault divorce” was made law. While fault-based divorce is still available, no-fault divorce is an additional (and much easier) way to obtain a divorce.

Some believe that “no-fault divorce” means that “my spouse cannot file for divorce because I’m not at fault.” Not so. In fact, no-fault divorce means almost the exact opposite: under no-fault divorce laws, one can petition or complain for divorce without having to plead marital fault as the reason for seeking the divorce and without having to prove marital fault to obtain the divorce.

When no-fault divorce was made law, it was believed that it would provide relief to spouses who were in miserable, dysfunctional marriages but who did not have any of the fault-based reasons for seeking a divorce. In that respect, no-fault divorce succeeded. An unintended consequence of no-fault divorce is that it made it too easy to obtain a divorce, resulting in more harm than good: the destruction of a marriage and family and all of the attendant consequences. Too many couples ended up (and still end up today) divorced when they could have and should have stayed married—they would have been happier and healthier (both physically and mentally) and wealthier had they worked on saving the marriage and family, rather than breaking them up.

Utah Family Law, LC | | 801-466-9277

(29) Eric Johnson’s answer to What is your argument in the legalization of divorce? – Quora

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