No-Fault Divorce - Essay Example

No-Fault Divorce 2009 No-Fault Divorce Since the adoption of a no-fault divorce approach by the majority of s in the 1970's, this issue has become one of the most controversial and debated social policy problems in the United States. Reasoning of governments that passed the no-fault legislation was understandable: to reduce the emotional stress and finger-pointing that often accompanied full-scale divorce trials. Giving more freedom to individuals in their decision-making about marriage and family was another seeming advantage of the no-fault approach. However, the current crisis of marriage as a valid social institution made many policymakers and sociologists rethink the reasoning underpinning no-fault divorce. In the first decade of this century the grown of divorce rates has reached almost epidemic proportions in the United States with as many as 12 million divorces registered over the 1990s which is the highest the developed world (Williams, 2000). Consequently, a number of experts view no-fault divorce as one of the key contributors to the increasingly high divorce rates in the US. Even brief analysis of the no-fault legislation and specifics of divorce granted under it suggests that such belief relies on solid evidence and might be absolutely correct: no-fault laws in their current form must be revised on the basis of sociological and legal experience that has been accumulated over the last three decades. The concept of no-fault divorce does not require demonstration of any proofs or evidences of wrong-doing to dissolve a marriage. The first state to adopt no-fault laws was California where they came in force on January 1, 1970. The example of California was soon followed by other states that implemented similar legislation. Prior to that, the procedure for obtaining a divorce involved mandatory provision of evidences demonstrating fault of one of the spouses. Requirements to the nature of such evidences were strict too. It was not sufficient to make a mere statement of not loving the spouse: only a proved case of committed adultery, wrongdoing, abandonment or other serious guilt qualified as a valid reason for divorce. At the same time, the spouse who preferred to save marriage had most instruments to do so. Therefore, it was up to the judge to weigh all evidences provided by both sides to the marriage, and often the decision regarding granting divorce was negative (Baskerville, 2000). The sophisticated divorce procedure forced many couples who did not commit any act sufficient for the court to grant divorce seek for the way to bypass it. This resulted in numerous tricks and legal fictions invented by lawyers to satisfy the needs of such couples. For the most part, these tricks were based on false testimonies. This tendency produced highly negative response from the legal community with numerous judges and lawyers arguing against the excessively strict divorce procedure. The key concern was that such increase of perjury cases occurrence might undermine the reputation and integrity of the US system of justice. Advocates of a simplified divorce procedure claimed that adoption of no-fault laws was a better choice than forcing spouses continue living together or making perjury (Friedman, 2002). Although the no-fault legislation apparently simplified the divorce procedure, there has recently been a considerable movement for revocation of no-fault laws in the United States. Several key problems are associated with the concept of no-fault divorce. Firstly, the initial objective pursued by authors and advocates of no-fault laws was to facilitate dissolution of marriage by mutual consent of both spouses. However, it turned out that in most cases mutual consent was not in place and the new procedure enabled any party to the marriage to dissolve it without the other party's agreement. Thus, according to some estimates four out of five no-fault divorces were unilateral with only one of the spouses insisting on ending the marriage (Baskerville, 2000). Secondly, no-fault laws not only weakened any legal defense that could be used by either spouse to protect the marriage. They left fathers absolutely unprotected when a wife is the party that wants to end the marriage: since in the majority of cases US courts favor wives in cases when parental rights are at stake. Thirdly, the very concept of marriage as a legally binding agreement deteriorated substantially because of the availability of no-fault divorce. The knowledge that marriage can be dissolved at the request of either party to it undermines the value of marriage vows for both spouses. The current divorce rate observed in the United States is a bright example how such deterioration of marriage values affects the society. And finally, no-fault divorce contributes significantly to the lowering of living standards of dependent wives. Since no-fault laws removed any grounds on which a wife could defend herself, the question of spousal support is normally resolved in favor of husbands (Williams, 2000). The roots of current situation can probably be traced back to the time when no-divorce laws were enforced. As it was already mentioned in the above discussion, no-fault divorce was supported mostly by the legal community consisting of judges and lawyers whose primary concern was to avoid perjury and complicated legal procedures required to dissolve the marriage. Probably little to no consideration was given to analysis of possible social outcomes no-fault laws could lead to. In other words, "the divorce laws...were reformed by unrepresentative groups with very particular agendas of their own and which were not in step with public opinion" (Baskerville, 2007, p.46). The comparison of benefits and shortcomings of the no-fault legislation provides a clear picture of the situation. On the one hand, one has a broad range of very serious social and personal problems associated with divorce and the still-increasing divorce rates in the United States; on the other hand, the procedure of dissolving the marriage is now simple to lawyer's and judges satisfaction. It might be true that the current trend of mass divorce can barely be attributed solely to no-fault divorce. For example, Edward S. Williams, one of the leading authorities in the field, believes that the main contributors to this trend were transformation of the traditional view on marriage as a lifelong binding agreement promoted by the Church, the onset and spread of feminist movement and the growing popularity of psychological view that divorce must be perceived as an opportunity for psychological growth of the person (Williams, 2000). However, granted the circumstances of enforcement and statistically proved correlations with the rates of divorce, it is equally difficult to contest the statement that no-fault divorce is another key contributor. Despite the need for urgent action, there is poor understanding of what exactly should be done to rectify the situation or at least avoid its worsening. Some experts believe that introduction of a longer waiting period prior to dissolving the marriage may be an appropriate solution. The pilot field for this option is Colorado where the waiting period constitutes three months for couples without children and one year for spouses that have young (under 16) children. In several other states, such as Michigan, this period is even longer (Baskerville, 2007). Special pre-marital courses, systems of material incentives, mandatory counseling and other alternatives are also on the list of potential remedies too. Since the exact contribution of no-fault divorce to the current divorce rate still remains unclear as well as the effects of any serious legislative changes in this field, policymakers must be extremely careful in their choices. Probably a combination of different solutions might be the best choice, but such combination must necessarily include enforcement of reasonable legal limits in granting no-fault divorce, especially in cases when the spouses have children. Other options listed above can be viewed only as supplementary. References Baskerville, Stephen (2007). Taken Into Custody - The War Against Fathers, Marriage and the Family. Cumberland House Friedman, Lawrence M. (2002). American Law in the Twentieth Century. New Haven: Yale University Press. pp. 435-36. Williams, E. S., 2000, The Great Divorce Controversy, London: Belmont House Pub Read More