{"id":16975,"date":"2012-04-11T11:45:58","date_gmt":"2012-04-11T16:45:58","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=16975"},"modified":"2012-04-11T11:45:58","modified_gmt":"2012-04-11T16:45:58","slug":"divorce-is-never-easy","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2012\/04\/divorce-is-never-easy\/","title":{"rendered":"Divorce Is Never Easy"},"content":{"rendered":"

\"\"<\/a>Every few years, we can count on hearing social commentary on the alleged erosion of American values.\u00a0 Predictably, marriage is part of the discussion, and inevitably, the American divorce rate is cited as a cause for concern.\u00a0 The figure usually cited is that 50% of marriages in the U.S. end in divorce, although the true figure is somewhere between 40% and 50% overall, with higher rates among couples who married at younger ages and lower rates for couples who married at older ages.\u00a0<\/p>\n

The usual trajectory of this discussion is for someone to claim that we have made divorce \u201ctoo easy,\u201d that marriages are viewed as throwaway commodities, and that the whole mess started in the 1970s when American states began to adopt no fault statutes.\u00a0 Prior to that time, one spouse had to claim total innocence in the marital breakdown while proving \u201cfault\u201d by the other party in one of several designated categories \u2013 typically adultery, desertion, or physical or mental cruelty. This proof was a painful and distasteful process, and it could both lengthen the divorce process and make it more expensive.\u00a0<\/p>\n

The adoption of no fault provisions made it possible for one party to obtain a divorce by alleging a ground such as \u201cirretrievable breakdown\u201d of the marriage without specifically attributing the blame to either partner.\u00a0 Since U.S. divorce rates peaked in the early 1980s after the adoption of no-fault laws, social critics periodically argue that we should return to fault-based statutes to make divorce hard to obtain.<\/p>\n

<\/p>\n

A recent article in The New York Times <\/a>discusses the current situation in England, which still has a system that requires proof of fault to obtain a divorce.\u00a0 It is a good reminder of where we Americans were a couple of decades ago, and it should serve as a cautionary tale about the consequences of returning to a fault-only divorce system.\u00a0 As was true here in former times, English divorce cases require couples to prove the fault of one spouse, and unless it is a case of provable adultery or desertion, they are left with a broad category called \u201cunreasonable behavior,\u201d which is roughly equivalent to \u201cmental cruelty\u201d under American statutes.\u00a0<\/p>\n

The article cites examples of allegations in recent English cases: a husband who required his wife to dress in a Klingon costume, the husband who refused to share the TV remote control, and the wife who threw away her husband\u2019s favorite cold cuts.\u00a0 These examples allowed us morning newspaper readers to have a chuckle, but I doubt that they are funny to the couples involved, nor to the judges who must juggle overcrowded dockets to listen to these pleas.\u00a0 As the English judges observed, a fault system requires people to bring their squabbles into court and publicly accuse and humiliate each other.\u00a0 If they are already suffering from the decline and end of their marriage, what possible justification is there for making them suffer more?<\/p>\n

In fact there is little proof for the claim that the advent of no fault divorce \u201ccaused\u201d more people to get divorced in the United States.\u00a0 The divorce rate increased at a time when there were other huge changes in American society: more women in the workforce, fewer children per family, longer lifespans, and greater expectations about marriage providing happiness and fulfillment.\u00a0 Lifelong marriage meant something different in 1900 when women had no other means of support and the average life expectancy was around 50.\u00a0 The fact that people now marry more for love than for economic security may in fact demonstrate greater<\/em> respect for marriage, even if people leave their marriages at somewhat higher rates than in bygone times.\u00a0 Anyway, the low likelihood of obtaining a formal divorce did not stop people from simply leaving their spouses or having affairs: both behaviors are as old as marriage itself.<\/p>\n

There was also a dark side to fault-only divorce.\u00a0 Remaining in marriages until one had incontrovertible proof of a spouse\u2019s fault could be very unpleasant and sometimes dangerous.\u00a0 Illinois was one of the last states to adopt no fault grounds, and I cringe when l think about my Illinois bar review teacher summarizing that state\u2019s rule at the time.\u00a0 \u201cRemember,\u201d he said,\u201d in Illinois the rule is that to obtain a divorce, the wife has to prove two beatings and that her husband had time to cool off in between.\u201d\u00a0 What happened to those women who stuck around for that second beating?<\/p>\n

People do not leave their marriages casually, and divorce is hard enough without making it harder.\u00a0 The English experience should remind us of how far we have come, and encourage us to stay the course by continuing to allow couples to end their marriages with less accusation and less humiliation within a no-fault system.<\/p>\n","protected":false},"excerpt":{"rendered":"

Every few years, we can count on hearing social commentary on the alleged erosion of American values.\u00a0 Predictably, marriage is part of the discussion, and inevitably, the American divorce rate is cited as a cause for concern.\u00a0 The figure usually cited is that 50% of marriages in the U.S. end in divorce, although the true […]<\/p>\n","protected":false},"author":17,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[45,122],"tags":[],"class_list":["post-16975","post","type-post","status-publish","format-standard","hentry","category-family-law","category-public","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/16975","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/17"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=16975"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/16975\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=16975"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=16975"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=16975"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}