Why Place Blame? The Debate Over No-Fault Divorce

[WSJ Law Blog]

Oliver Rose: I think you owe me a solid reason. I worked my a** off for you and the kids to have a nice life and you owe me a reason that makes sense. . . .
Barbara Rose: Because. When I watch you eat. When I see you asleep. When I look at you lately, I just want to smash your face in.
– from “The War of the Roses,” 1989



We hereby pronounce marriage and divorce the themes of the day. While over on the Left Coast some are celebrating a court decision expanding marriage rights, there’s a New York-based movement afoot to make divorce easier. Welcome, Law Blog readers, to the debate over “no-fault” divorce.

The most recent issue of Elle magazine (that’s right, we like to read widely here at LB headquarters) contains a riveting feature entitled “Stuck On You,” about the push to pass a no-fault divorce law in New York. For those LB’ers who didn’t have the pleasure of taking the New York bar exam, here’s the divorce law of the Empire State: In the absence of mutual consent, there are only four grounds for divorce — “cruel and inhuman” treatment, adultery, abandonment for one year, or having spent at least three years in prison. (The only other states that don’t offer unilateral divorce are Mississippi and Tennessee.)

According to the piece, New York has held its conservative stance on divorce for generations, thanks in part to the New York legislature’s “largely Catholic” composition — despite its liberal reputation. But now a group of matrimonial attorneys, policymakers, academics, and, even, TV judges, are lobbying for no-fault divorce. “Any law that prescribes that people must live together if the marriage is broken is wrong,” said Judith Sheindlin, a/k/a Judge Judy, at a recent bar association event.

What’s the argument against no-fault? On the other side of the debate, reports Elle, is the New York Chapter of the National Organization for Women (NOW-NYS), a “stalwart feminist organization” launched by Betty Freidan in the late ’60s to promote equal rights for women. NOW-NYS, finding itself allied with so-called pro-family organizations, says that “Improving women’s economic status is the primary lens through which we look at issues.” In other words, by keeping no-fault divorce out of the law, women can — for lack of a euphemism — extort financial settlements with the threat of contesting the divorce.

Those fighting for no-fault accuse NOW-NYS of ignoring the facts. “There is no evidence to support the claim that no-fault provides women with a significant bargaining advantage,” says Brooklyn Law School professor Marsha Garrison, who compared support awards in New York with those in other states and concluded that no-fault divorce didn’t cause a decline in awards. Moreover, as forum participant Judge Sondra Miller noted forcefully, “This [fight] isn’t only about money.” Women are more susceptible to becoming trapped in bad marriages. A man at last resort has the escape clause of moving to a neighboring no-fault state, whereas women most often caring for children don’t.

Says Judge Judy: “I think some vocal opponents have been bamboozled to believe that the women and children are going to starve. That’s ludicrous. That is not what is happening. There are women out there today earning more than their mates.”

When one partner is forced into divorce because the other partner cannot keep his/her committments, surely there should be some recognition of that fact? Here's my story:
My husband engaged in a long series of extra-marital affairs, which I did not know about. I was decieved and lied to for many, many years. I became very ill and had to go abroad for two months for life-saving surgery. While I was away he became involved in a relationship with a woman half my age, whom he eventually left me and our two children for. He has subsequently 'married' this woman without getting divorced from me first. Throughout the 25 years we were together I worked hard at our partnership, consistently putting his interests and career ahead of my own (because I thought we were a team). I am now left, at an age when I am unlikely to find a new partner easily, with two kids and stalled career, despite having faithfully kept my side of the bargain from start to finish.

How can there be 'no fault' here? I am have been harmed, psychologically and financially, and he is the one who has harmed me.

When one person has harmed another, the law should recognise it. Sometimes that's all we want: the public acknowledgement that we have been wronged.

A court will consider those factors normally and that is reason to be granted support, alimony, greater assets from the community estate etc.

Sometimes it has to be a big battle though unfortunately.