«THE DIRECTION OF DIVORCE REFORM IN CALIFORNIA: FROM FAULT TO NO-FAULT... AND BACK AGAIN? Prepared by Donna S. Hershkowitz and Drew R. Liebert ...»
CURRENT STATE LEGISLATION
THE DIRECTION OF DIVORCE REFORM IN CALIFORNIA:
FROM FAULT TO NO-FAULT... AND BACK AGAIN?
Prepared by Donna S. Hershkowitz and Drew R. Liebert
Counsel, Assembly Judiciary Committee
California State Legislature
“The time has come to acknowledge that our present social and legal
procedures for dealing with divorce are no longer adequate.”
-- Governor Edmund G. Brown, Sr., 1966, explaining his support of nofault divorce reforms.
INTRODUCTIONThree years after Governor Brown urged reforming California’s fault-based divorce law, Governor Ronald Reagan signed the Family Law Act of 1969 into law, making California the first no-fault divorce state in the nation. Or, looked at by some in another way, “On September 5, 1969, with a stroke of his pen, California governor Ronald Reagan wiped out the moral basis for marriage in America.”1 Since California's historic divorce reform, every state has enacted some form of no-fault divorce.
Nationally, there has been some movement in recent years to return to fault-based divorce, or to at least impose additional obstacles to getting a divorce or to getting married. This movement was spurred by what has been seen as increasingly high divorce rates, the high rate of poverty in single-parent homes, and perceptions that the real “victims” of no-fault have been the children of divorce. The movement to restore fault divorce, or move in that direction, is guided by the hope that the imposition of obstacles to getting divorced will remove the “easy out” reformers say no-fault has provided. In the absence of no-fault, reformers continue, couples will be forced to work through their problems and the end result will be increased numbers of families remaining intact, and healthier more stable children.
Others disagree, however, contending that the return to fault-based divorce will bring with it greater numbers of families who are physically separated without being legally divorced, fewer marriages, and an increased number of women and children living in violence and living with high levels of conflict.
One judge in Australia posed an interesting solution to what he saw as the growing divorce problem. According to one tabloid newspaper, an Australian judge ordered a couple who went to court seeking a divorce “after four long years of bickering and battering... to forget about the divorce, to go home arm in arm, and to make mad, passionate love every day for the next six months.” The judge told the couple that if they followed his advice to the letter, and still wanted the divorce in six months, he would grant it. According to the caption on the picture accompanying the story, “Loving couple Dustin and Angela Womack may call off their divorce after months of making whoopee.”2 But that unusual “solution” aside, critics have blamed no-fault divorce laws for many of the serious ills of society, including: increased child poverty, high school drop-out rates, teenage pregnancy, low birthweights, greater welfare dependence, and juvenile crime.
Studies have indeed shown that such ills are more prevalent in single-parent homes, and the rise of no-fault divorce has led to an increase in the number of single-parent homes.
But is no-fault divorce really to blame, or are other larger forces at the root of these challenging societal ills? Some place the blame squarely on no-fault. But others point to studies which show that single-parent homes are substantially poorer than two parent homes, and poverty, rather than divorce law, is what can be blamed for these problems.
This paper, prepared for a hearing by the Assembly Judiciary Committee of the State of California, will examine these perplexing questions.
SECTION ONE: BRIEF HISTORY OF GROUNDS FOR DIVORCE IN
BOTH THE FAULT AND NO-FAULT ERAS3Before turning to a review of the goals of the “no-fault” revolution in the United States started by California, a brief history of the development of divorce and divorce laws is helpful to understanding the context of today’s arguments over no-fault divorce.
Many American states enacted divorce legislation soon after Independence, in the 1780s and 1790s. Connecticut was the most liberal, permitting divorce for “…adultery, fraudulent contract, desertion for three years, or prolonged absence with a presumption of death.” 4 In 1843, the state added two additional grounds for divorce: habitual drunkenness and intolerable cruelty. The Connecticut state legislature also dissolved marriages on other grounds by legislative action. In 1849, the courts were given sole responsibility for divorce, and grounds were extended to include “life imprisonment, any infamous crime involving a violation of the conjugal duty, and -- most important -- ‘any such misconduct as permanently destroys the happiness of the petitioner and defeats the purpose of the marriage relation.’”5 Divorce laws were generally more liberal in the West than in the rest of the country.
California’s first divorce law, in 1851, contained the following grounds for divorce:
impotence, adultery, extreme cruelty, desertion or neglect, habitual intemperance, fraud, and conviction for a felony. In practice, the courts extended the definitions of these terms.
Most American states broadened the grounds for divorce throughout the 19th century, encompassing more and more matrimonial conditions. By 1900, most states had adopted four major elements of divorce law: “fault-based grounds, one party’s guilt, the continuation of gender-based marital responsibilities after divorce, and the linkage of financial awards to findings of fault.” 6 The divorce rate in the United States increased from 1.2 per 1,000 existing marriages in 1860 to 4.5 in 1910. These rates were significantly higher than in Europe, as remains the case today. Nonetheless, divorce rates have risen steadily over the last 100 years in all Western countries where divorce is permitted, accelerating in the 1960s and early 1970s.
A wide variety of contributive factors have been studied. One analysis finds that three factors have generally been used to explain the increase: “…easier access to divorce, married women’s employment, and changes in social values.” 7
Table 1 details the change from a fault-based system of contestable divorce, tied to one party’s guilt and linked to continuing financial obligations, to a no-fault “petition for dissolution” which does not require the consent of both parties and is based on “irreconcilable differences.” As the grounds for marital dissolution have expanded in Western societies over the last 200 years, divorce has become more accessible and the divorce rate has increased.
Nonetheless, there appears to be no clear causal link, as social, economic, demographic, cultural and institutional factors all appear to be key influences. As a practical matter, commentators note that marriage relationships can end whether or not divorce is available, and that divorce allows the possibility of remarriage.11
SECTION TWO: THE BI-PARTISAN DECISION TO END FAULTBASED DIVORCEThe impetus for the nation’s no-fault divorce revolution started by a Democratic California governor, but it became a reality by the stroke of a Republican governor’s pen.
On May 11, 1966, Governor Edmund G. Brown established the Governor’s Commission on the Family. The Commission was created to begin a “concerted assault on the high incidence of divorce in our society and its often tragic consequences.” 12 Governor Brown charged the Commission with the task of addressing ways the family law system, substantively and procedurally, could function more effectively.
The Commission came up with a series of recommendations, including a unified statewide Family Court system with jurisdiction over all matters relating to the family, and an elimination of fault grounds for divorce, division of property, and support matters.
The Commission believed these recommendation would “establish procedures for the handling of marital breakdown which will permit the Family Court to make a full and proper inquiry into the real problems of the family[,]... which will enable the Court to focus its resources upon the actual difficulties confronting the parties.” 13 According to one member of the Governor’s Commission, the motivations of the members of the Commission and those who participated in the effort to reform California’s divorce laws were far from uniform. However, one common viewpoint shared by most was that divorce based on fault no longer served the public interest. The Commission therefore undertook to design and implement a divorce law that would take account of the realities of married life, the economic needs of divorced dependent spouses, and the best interest of children.14 On September 5, 1969, Governor Ronald Reagan signed California’s new and revolutionary Family Law Act into law. Although not achieving the Family Court envisioned by the Commission, the Family Law Act made the Commission’s no-fault divorce concept a reality. “At the time, such legislation seemed humane and enlightened.
It was hailed as an overdue reform of a wink-wink, nudge-nudge system rife with hypocrisy and lurid accusations. Under the fault-based system, the suing partner had to prove the fault of the other and show themselves to be blameless; otherwise their respective culpability canceled each other’s claims.... Even when both partners desired the divorce, they were often reduced to perjury and collusion, sometimes staging adulterous liaisons to be captured in grainy photographs by lurking private eyes.” 15 The California reform effort that produced the Family Law Act ended in 1969. One of its major goals, and its most enduring achievement, was “to free the administration of justice in divorce cases from the hypocrisy and perjury that had resulted from the use of marital fault as a controlling consideration in divorce proceedings.” 16
SECTION THREE: KEY ISSUES SURROUNDING THREE DECADES OF
NO-FAULT DIVORCEIn the almost three decades since California’s no-fault divorce “revolution” began, society, and its trends, have changed immensely. Many claims have been made about the effects of no-fault divorce in California and across the country. Following is a summary of some of the key issues that have been raised.
I. The Growing Divorce Rate
Opponents of no-fault believe that, in many cases, no-fault makes divorce too easy to resist for couples on the rocks. Without no-fault, the argument goes, many of those couples would find ways to stay together, and the divorce rate would not be nearly as high as it is. The commonly quoted statistic is that nearly 50 percent of all marriages will end in divorce.17 Critics of no-fault often focus on this statistic in questioning no-fault. According to the Sacramento based Capitol Resource Institute, “despite its prevalence, and despite its now undeniable impact upon the individuals involved, there remains a strong reluctance to do anything to reverse or even slow its spread.... ‘If a disease were to afflict the majority of a populace, spreading pain and dysfunction throughout all age groups, we would be frantically searching for reasonable solutions. Yet this particular scourge has become so endemic that it is virtually ignored. The scourge is divorce, an oddly neglected topic in a nation that has the worst record of broken marriages in the entire world.’” 18 However, the assertion that one-half of all marriages end in divorce, despite its popular usage and apparent influence on the literature on the subject, may be extremely misleading. According to pollster Lou Harris, “The idea that half of American marriages are doomed is one of the most specious pieces of statistical nonsense ever perpetuated in modern times. It all began when the Census Bureau noted that during one year, there were 2.4 million marriages and 1.2 million divorces. Someone did the math without calculating the 54 million marriages already in existence, and presto, a ridiculous but quotable statistic was born.” 19 Of course, the fact that divorce rates have increased substantially in the past 40 years is without question. Divorce rates began a steep increase in the mid-1960s, the tail end of the pre-no-fault era. Through the 1950s and 1960s, divorce rates remained fairly steady at fewer than 400,000 per year, or 9 to 10 divorces per 1,000 married women. But by 1965, the number of divorces jumped to 479,000 per year, or 10.6 for every 1,000 married women. By 1975, the number of divorces had topped 1 million per year, and the national divorce rate peaked in 1980, when there were 1,189,000 divorces, or 22.6 for every 1,000 married women.20 II. Possible Causes of High Divorce Rates Not surprisingly, many commentators associate the jump in divorce rates nationally with the advent of widespread no-fault divorce. “In 1960 16% of first marriages ended in divorce; today, the figure is closer to 50 percent. In the five years following the enactment of no-fault in California, the national divorce rate increased almost 40%.” 21 However, there may be causal factors other than no-fault laws for divorce rate increases.
Data from the U.S. Census Bureau show a sharp increase in divorce rates during and at the end of World War II. Moreover, it is a little known but powerful fact that divorce rates across the country have been declining for the past decade. The divorce rate per 1,000 population was 4.7 in 1989 and 1990, and is 11 percent lower than the peak rate of
5.3 in 1979 and 1981.22 And neither of these trends occurred at a time when there were any substantial changes in the nation’s divorce laws.