The New York Times Online
Don’t Let Divorce Off the Hook
ROBIN FRETWELL WILSON
Published: October 1, 2006
NEW YORK is one of the few states without unilateral no-fault divorce, which means that New York couples can get a no-fault divorce only by mutual agreement.
Judith Kaye, New York State’s chief judge, set out to change all that. Earlier this year, the matrimonial commission she formed recommended that the state enact full unilateral no-fault divorce. Judge Kaye highlighted the proposal in her annual address about the state of the judiciary, and the idea was promptly endorsed by the New York Bar Association and the Women’s Bar Association, as well as major newspapers.
Despite all that establishment grease, no-fault divorce promptly went nowhere. While a bill was introduced in Albany, the Legislature went home in June without negotiating or making any progress on the specifics of the legislation.
A similar thing happened when the American Law Institute, an influential organization of lawyers, academics and judges, called on states to strip all remaining vestiges of fault from family law, even as a factor in alimony or property distribution. But six years later, not a single state has passed new legislation to eliminate fault in family law.
Meanwhile, this summer, Louisiana became one of the first states in years to pass a major no-fault revision, in the opposite direction: creating a new one-year waiting period for no-fault divorce when couples have children younger than 18 years old, unless there is a determination of abuse in the marriage. And a group of more than 100 legal and family scholars just released a report urging legislators to consider passing extended waiting periods for no-fault divorce.
What accounts for the new resistance to no-fault? Reasons include the growing evidence that divorce often hurts children, feminists’ renewed recognition of the importance of legal protection for mothers raising children, and concerns about the economic disparities created by differences in marriage rates. Gay marriage advocates have also played a role in this shift, by calling attention to “easy divorce,” which they say is the real threat to marriage, not same-sex unions.
But another reason is Americans’ intimate familiarity with divorce and its consequences. As a family law scholar, I have long written about the problems with divorce, driven largely by the scholarly evidence. This past year, I joined the ranks of Americans with personal experience.
While I was living in Maryland, my husband, from whom I am now divorced, assaulted me (an assault for which he has since been convicted). On the whole, I had been impressed by how Maryland protects victims of domestic violence. But I also came to understand why the New York chapter of the National Organization for Women has opposed Judge Kaye’s unilateral divorce proposals.
When no-fault divorce advocates say that family law should pay no attention to the reasons why a marriage ends, what does this mean in practice for modern women like me who have careers and have built assets? We are told that we should in effect have to pay our batterers for the privilege of divorcing them. That seems to me, as to many other Americans, not only bad social policy, but deeply and profoundly wrong.
Americans care why marriages break apart. Infidelity, violence, abandonment matter. This does not mean we must uncritically embrace the old fault-based divorce laws. It does suggest we need a prudent and realistic search for new approaches to enacting our shared moral understanding of marriage.
Marriage should be a place where spouses can count on promises of fidelity and where spouses (and children) are physically protected. Under current New York law, fault matters to property distribution and the determination of alimony only in those exceedingly rare instances of extreme brutality that shocks the conscience. But fault includes more than extremely outrageous behavior.
If New York legislators go ahead and give one spouse a unilateral right to a no-fault divorce, they need to lower the threshold for considering fault in property distribution and alimony awards. Without a more sensible threshold, there can be no norms of decency within marriages and family relationships.
Contrary to the American Law Institute and to Judge Kaye, we should recognize that often someone is at fault, and that needs to matter in the dissolution of the marriage if the law is to do justice.
Robin Fretwell Wilson, a visiting law professor at Washington & Lee University, is the editor of “Reconceiving the Family: Critique on the American Law Institute’s Principles of the Law of Family Dissolution.”
I once heard an interesting theory on conservatives, that they were liberals who once got mugged. Applying that little bit of urban folk lore to the above article, I’d have to say that the strongest supporters of fault-based marriages might eventually become feminists who get a major ‘beat down’ from their husbands. As I guarantee you that if Robin Fretwell Wilson hadn’t faced that experience, she’d be like many other gender-neutralized feminist attorneys or family law scholars out there (similar to the Judge Judith Kayes of the world) arguing to toss fault out of marriage.
In brief: keeping fault in marriage PROTECTS the more vulnerable partner in the enterprise, which is still generally WOMEN. It PROTECTS the person who has the least income, quite simply because they have taken time out from their education and career to invest themselves physically and emotionally in their marriage and children instead of a career. Actually their husband, home and children are their career. Thus, it generally protects women, who btw, are already vulnerable to losing custody of their children in a legal system currently overrun by greedy men and gender-neutralized feminists. A legal system that is already far too friendly to the partner with the most money to spend on the sneakiest attorney to help them work that system. A legal system that is apt to take custody of even infants away from their mothers and hand them over to fathers quite simply because it is considered trendy and progressive to do so today.
Thus assigning fault (if it exists) in divorce is a necessary evil to protect the partner who has done no wrong, is very frequently the one with little income to defend themselves in court and stands to lose not just their home and standard of living but their children as well. Since alimony is rarely awarded these days and the shelf life of women in the market expires very quickly. Otherwise like Ms. Wilson points out men behaving badly (or women as the case may be) get rewarded for bad behavior.
Actually fault should not just exist for property settlements, but for custody of children as well. Since I find it hard to believe that the 50% of us that is male and is responsible for the most crime and anti-social acts in every society worldwide is not also responsible for committing the most acts of fault that bring about divorce as well. AND we need to stop rewarding the bad boy and irresponsible behavior that leads to most divorces, no matter who ultimately files for them first.