The Post-Divorce-Parenting Glossary

• What is a no-fault divorce?
• Why did courts shift to no-fault divorce laws?
• What are the pros and cons of no-fault divorce?
• Why are some people against no-fault divorce?
• What implications does no-fault divorce have on child custody?
• What still needs to be done to address the issues that we caused by no-fault divorce?

What is a no-fault divorce?

A no-fault divorce is a dissolution of a marriage where marital misconduct does not need to be shown.

Why did courts shift to no-fault divorce laws?

Prior to no-fault divorce laws, a person wishing to divorce their spouse would have had to prove the other had committed some sort of marital misconduct, such as:

• Cruelty toward a spouse
• Emotional, physical, or sexual abuse
• Adultery
• Alcohol and drug abuse
• Desertion for a certain length of time
• A spouse being confined in prison
• Insanity
• Physical inability to have sexual intercourse when a spouse does not disclose prior to marriage
• Cruelty, which includes the infliction of emotional or physical pain and abusive treatment
• Adultery
• Desertion for a specified length of time
• Confinement in prison for anumber of years
• Alcohol or drug abuse
• Insanity
• Transferring a sexually transmitted disease to the spouse

Once a judge determined that marital misconduct had taken place, that judge would grant the divorce.

Pressure from feminist groups put a great deal of pressure on legislatures to change to no-fault divorce, largely because women in an abusive marriage would have extreme difficulty getting out of that relationship.  In 1970, California became the first state in the United States to adopt no-fault divorce laws.  Over the next 40 years, every other state in the U.S. also adopted no-fault divorce laws.

What are the pros and cons of no-fault divorce?

No-fault divorce has several pros and cons.

Pros of no-fault divorce laws
 

• It reduces domestic violence in marriages.  Prior to the shift to no-fault divorce, women in abusive relationships had to prove the abuse was occurring in order to leave the marriage.  Attempting to prove abuse was an enormous challenge for women subjected to the abuse.
• It led to a reduction in female suicides.  This correlates with domestic violence.  When women felt trapped in an abusive relationship, some resorted to suicide if they could not escape.  Shifting to no-fault divorce led to suicide rates declining among married women.
• There is less conflict in divorces without children.  When fault doesn't have to be shown, the amount of bitter litigation is reduced; however, when children are involved, conflict is still typically high as one parent attempts to prove they are the better parent in a child custody dispute.
• Less private information is made public.  Because court proceedings are the public domain, shifting to no-fault divorce helped to keep a lot of personal information out of a court proceeding, and likewise, out of the public domain.
• It reduces the time it takes to divorce.  Because a great deal of litigation is avoided by not having to show fault, divorces are much quicker and more affordable.
   

Cons of no-fault divorce laws

• One party cannot stop the divorce if they wish to remain married.  More than three-quarters of all divorces have one party attempting to salvage the marriage.  Because of no-fault divorce laws, if just one other party does not wish to remain in the marriage, the person attempting to save it has little recourse.
• It leads to more children being affected by divorce.  Because the divorce rate increased to roughly double the rate in the at-fault divorce days, far more children today are subjected to experiencing a broken home.
• Fathers are very likely to have no say in the divorce and lose custody.  While courts are obligated to follow the best interest standard, the fact remains that most custody cases lead to the mother getting custody and the father getting visitation with a forced child support payment.

Why are some people against no-fault divorce?

Several groups or organizations oppose no-fault divorce for a variety of reasons.

Father's rights groups
One of the more vocal opponents against no-fault divorce are some fathers' rights groups.  The reason is because women are typically the ones who initiate a divorce and then get custody.  If a father did nothing wrong but the mother still wishes to divorce, there is little the father can do to prevent the divorce from happening.  Despite family courts no longer using the tender years doctrine, women get custody more than three-quarters of the time.

Ending no-fault divorce would help reduce that scenario from occurring.

Mother's rights groups
While it is true that no-fault divorce was spearheaded by the feminist movement, some mother's rights groups actually do oppose no-fault divorce.  Some of the reasons have to do with what women are forced to give up in order to get custody.  An example scenario for women is that they negotiate a settlement agreement that sacrifices many marital assets in order to be awarded custody.

Religious groups
The primary reason that religious groups oppose no-fault divorce is because of the disintegration of the family.  Religious groups oppose the idea that people would back out on vows that they took.  No-fault divorce, they argue, makes it easy to break a sacred promise that was made to both themselves and to God.

What good is a vow if it can be broken when times get tough?  This question is at the forefront of no-fault divorce laws.  It isn't only religious affiliated groups who wonder how at the beginning of a marriage we can make a promise only to break that promise without grounds later.

What implications does no-fault divorce have on child custody?

Increased burden on family courts
Because of the increased number of divorces caused by reducing the requirements to exit a marriage, family courts must contend with other problems.  The number of divorce cases and child custody cases they are forced to hear has increased significantly.  This has led to courts being overwhelmed with child-custody litigation.

More children subjected to divorce
The increase in the number of divorces due to no-fault divorce leads to a proportional number of children affected by divorce.  Without modifying how parents transition into divorced parenting life, high-conflict parenting is likely to be a common attribute divorces where child custody is in question.

Divorced families where children are involved suffer financially
When children are involved in a divorce, each parent will need to have a home that is adequate for the children.  Each parent will need a vehicle that is adequate for the children, as well.  In fact, there are many expenses that nuclear families simply split that divorced families must pay for twice.  This leads to a lower standard of living for the entire family.

What still needs to be done to address the issues that we caused by no-fault divorce?

Family law has changed to the best interest standard in deciding child custody cases; however, this is far from perfect.  The next big step for family law to address has to be the effects of divorce on children, because the most damaging part of any divorce is the effect it can have on the children involved.  

When people divorce without children, they typically never have to speak to each other again once it is dissolved; however, when parents divorce, they must remain in contact for the purpose of raising their children.  Even if one parent is awarded sole physical custody and the other is not, it is common to have joint legal custody and a visitation schedule that must be adhered to.  Communication is integral part of post-divorce parenting that many divorcing parents are not ready to adjust to.  

Because it has become so easy to divorce, far too many children have their lives upheaved.  Their relationships with at least on parent are often strained because of factors like parental relocation or parental alienation.  Today almost 80 percent of the woman in a divorce are awarded custody, despite doing away with the tender years doctrine.  One reason is largely because it women who initiate a divorce, and this means they have had a head start on discussing the case with a lawyer before telling their husband that they intend to leave.

To address issues like the head start problem and prevent children from being unnecessarily victimized because of divorce, family law should consider how it could help parents transition to a co-parenting relationship after a divorce, because as of now the best interest doctrine has failed to do so.

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