The Post-Divorce-Parenting Glossary

• What is an at-fault divorce?
• What are examples of marital misconduct in at-fault divorces?
• Do any states or countries still have at-fault divorce laws?
• Why did at-fault divorce laws end?
• What were the pros and cons of at fault divorce vs no fault divorce?
• What changes to society occurred after the transition away from at-fault divorce to no-fault divorce?
• Why do some father's rights groups wish to reinstate at-fault divorce laws?
• How would the accusing spouse have to prove marital misconduct in an at-fault divorce?
• Did a transition away from at-fault divorce solve the problems with child-custody?

What is an at-fault divorce?

Largely obsolete today, an at-fault divorce is a divorce in which one spouse must be shown to have committed marital misconduct for the divorce to be allowed to proceed.  This process usually involves one spouse attempting to prove the other spouse has violated the marital agreement, thus seeking dissolution of the marriage.

What are examples of marital misconduct in at-fault divorces?

The following are examples of marital misconduct, that when proven in a family court, may have resulted in a spouse being deemed at-fault in a divorce proceeding:

• 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 a spouse
   

Do any states or countries still have at-fault divorce laws?

In 1970, California was the first state to adopt no-fault divorce legislation.  Today, in the United States, people are eligible to file for a no-fault divorce in all fifty states and the District of Columbia.  New York was the last to make the transition in 2010.  Ironically, New York was the setting for the 1979 movie, Kramer vs. Kramer, where two parents devastated each other in a heartbreaking story about a child-custody battle in the at-fault divorce days.

Different states and countries still have different requirements before a divorce will be granted, and while no states in the U.S. require fault to be proven, many states require the couple to be legally separated and incur a waiting period before being able to divorce.

Why did at-fault divorce laws end?

There were several reasons why at-fault divorce ended:

• Showing fault was seen to be a high burden on women, who at the time, often lacked the financial resources to hire a lawyer to show fault.
• Many abusive relationships would be allowed to continue, unless the person seeking the divorce could prove the abuse was taking place.
• Proving fault often led to extreme conflict, which was much harder on children if they were involved in a child-custody case.
• Showing the other was at fault led to private issues being made public.  Court records would be public domain, so whatever accusations were made by one spouse about he other would be available for anyone to read.
• Showing fault often led to perjury or exaggeration about issues.  People seeking to be awarded a divorce would be forced to dig up any details about a person and embellish them so they would seem much worse. 

What were the pros and cons of at fault divorce vs no fault divorce?

When fault had to be proven before granting a divorce, problems such as domestic violence, female suicide, and domestic murder by women were significantly higher.  A 2004 study by Stanford Business School showed that domestic violence drops by 20% and female suicide by 33% because of no-fault divorce.  The reason seems to be that prior to no-fault divorce, it was extremely difficult for a woman to get a divorce.  Many would not have a viable way out of an intolerable situation.

Another negative issue that at-fault divorces led to was each party in the divorce degrading each other in family court, in order to show that the other person was not worthy of staying married to.  This would lead to issues where the children might hear terrible things, many not true, about each parent.  This would not help the children cope with the divorce process, but would rather lead to children having even more negative feelings about the entire situation than would be if the parents were able to amicable during the divorce process.

What changes to society occurred after the transition away from at-fault divorce to no-fault divorce?
The transition to no-fault divorce has had profound effects on society.  Some are positive and some are negative.  The following are some of the ways society, marriage, and children have been affected. 

Sanctity of marriage
With regard to the sanctity of marriage, opponents of no-fault divorce take issue with the low resistance to getting divorced.  Many attribute the breakdown of the family as being caused primarily by shifting from at-fault divorce to no-fault divorce laws.

Changes in cases of mental or physical abuse
When fault had to be proven to divorce a spouse, leaving an abusive marriage could be an enormous challenge.  Shifting to no-fault divorce reduced situations where women were subjected to physical or mental abuse.

More children subjected to divorce
In every jurisdiction that transitioned to no-fault divorce laws, the divorce rate increased.  This is not surprising, since many would essentially remain unhappily married since getting a divorce was too troublesome when fault had to be proven.  With an increased number of divorces comes an increased number of children subjected to divorce.

Less conflict in the divorces
When fault had to be proven and divorcing parents went to court, the conflict level was extraordinarily high.  No-fault divorce lowered conflict somewhat, although when parents are in a custody battle, conflict is still typcially quite high.  In a sense, while the overall level of conflict is lower in a no-fault divorce, the increased number of divorces and conflict created by child custody disputes has led to children being more affected by divorce than they were before the no-fault divorce laws were passed.

Why do some father's rights groups wish to reinstate at-fault divorce laws?

Some fathers' rights groups are against no-fault divorce because it makes it easier for women to leave the marriage, get child custody, and force the father to pay child support.  Even though the days of the tender years doctrine are over, women still retain child custody more than men.  Thus, fathers' rights groups argue that a divorce tends to be more damaging to men than it does to women when children are involved.

While not all father's rights proponents are against no-fault divorce laws, many feel that it is an assault on their own rights as fathers since there is a significant inequity in the number of fathers awarded custody compared to women.  Women get child custody than men for a variety of reasons.  One such reason is that women are more likely to initiate the divorce.  Women initiate approximately two-thirds of the divorces that occur today.  In more than 80 percent of the divorces, women become the primary custodial parent.  In addition, child support is more likely to be awarded to a woman than a man, even if the man is awarded custody.

How would the accusing spouse have to prove marital misconduct in an at-fault divorce?

In order to have the marriage dissolved, the charges of marital misconduct would need to be proven.  This would typically involve having witnesses to the misconduct.  The situation would often lead to emotionally charged arguments and hard feelings between all parties involved.

Did a transition away from at-fault divorce solve the problems with child-custody?

Two significant events have occurred in the past few decades that radically affected family law and child custody cases.  These two shifts are: 1) the transition from fault-based divorce to no-fault divorce, and 2) moving away from the tender years doctrine to the best interest of the child standard.

While these two changes have happened, problems still exist.  In some ways, the fixes have create their own set of problems.  These unintended consequences are:
More than double the number of children per married couple are subjected to divorce because divorce rates doubled when no-fault divorce became law.

The best interest standard has be used as a tactic in custody battles, where the initiator of a divorce typically takes the children when he or she moves out, thus establishing the first step in winning child custody.

It would be remiss to assume that the changes to family law have "fixed" the problems, and because family law is so incredibly slow to adapt to the changes that are necessary, it is likely that these issues will exist for many years.  At some point, a change to how divorce occurs when children are involved will be necessary in order to prevent the negative effects that children of divorce are likely to experience.
 

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