Dear johnfrommelbourne,
Divorce laws in the United States do vary significantly from state to
state. The table available through the following link, from the
Separated Parenting Access and Resource Center, provides an overview
of each state's divorce laws, indicating which states follow a fault,
no-fault, or mixed model, and some of the acceptable grounds for
divorce in fault states:
http://www.deltabravo.net/custody/faultstates.htm
In states which do not permit "no fault" divorces, or which forbid "no
fault" divorces where one of the spouses objects, it becomes necessary
to establish fault on the part of one of the parties.
If you have seen old American movies, where divorce is depicted, you
have probably seen references to "mental cruelty" as a basis for
divorce. Historically, this was the way couples typically worked
around "fault" laws when they wanted a divorce - one (usually the
husband) would admit to fault, using nebulous but acceptable language,
and the court would grant the divorce on the basis of that admission.
However, this custom has become strained by custody laws which permit,
and sometimes require, courts to consider abusive conduct by a party
when making grants of child custody and parenting time (visitation). A
parent is much less likely to admit to fault in order to obtain a
divorce, if that admission will affect child custody.
Further, admissions typically become part of the public court record,
and there have been some prominent individuals who have been
embarrassed by public disclosure of fault allegations from the court
files associated with their divorces. The Divorce Source website
reproduces an article from the National Legal Research Group, Inc.,
"The Admissibility And Relevance Of Prior Bad Acts In Child Custody
Cases", which discusses how various admissions or incidents of past
misconduct may affect custody:
http://www.divorcesource.com/research/dl/childcustody/96apr73.shtml
A case that comes to mind, where allegations made in divorce
proceedings were made public, involves the prominent (some would say
"infamous") American lawyer, Geoffrey Fieger. When Mr. Fieger ran for
public office, those allegations received significant media coverage.
For example, the Detroit Free Press ran an article, "Fieger's
skeletons won't stay buried", detailing allegations of physically and
verbally abusive conduct:
http://www.freep.com/news/politics/qfieger13.htm
It should also be noted that, even in "no fault" states, fault may
remain a factor for issues other than divorce. For example, Michigan
permits fault to be argued as a basis for an unequal division of the
marital estate. Also, various forms of conduct which might amount to
"fault" may be relevant to a contest over child custody. As the
Divorce Source article linked above indicates, the bad acts which may
affect custody are a subset of those typically cited in an action for
a fault-based divorce. Most states, for example, will no longer
consider adultery (committed outside of the presence of the children)
as a basis for a child custody decision, even though it remains as a
ground for a fault-based divorce.
In Michigan, every few years the legislature makes noises about
repealing "no fault" divorce, and restoring a fault-based system, more
or less for the same reasons you recite in your question. This
inspires discussion of the issue at gatherings of matrimonial lawyers.
During those discussions, the following points are typically raised:
- The divorce rate is unlikely to decrease with a repeal of "no
fault";
- The repeal of "no fault" would make divorce even more bitter and
acrimonious;
- The group that would most benefit from the repeal would be divorce
lawyers;
- There is irony in the fact that legislators, who on the whole
divorce at a rate significantly above the national average, wish to
impose restrictions on the rights of other people to obtain divorces.
Incidentally, despite the fact that divorce lawyers know that they
would benefit financially from the repeal of no fault, I have yet to
meet one who supports repeal on that basis. The typical divorce lawyer
vehemently opposes its repeal. Those who disfavor no fault typically
oppose it on the basis of their religious beliefs.
Research Strategy:
In addition to experience as a lawyer, I utilized the following Google
searches:
- divorce "fault states"
://www.google.com/search?q=divorce+%22fault+states%22
- divorce alleged drunkenness abuse
://www.google.com/search?q=divorce+alleged+drunkenness+abuse
- Fieger divorce
://www.google.com/search?q=fieger+divorce
I hope you find this helpful. If you require additional details,
please don't hesitate to request clarification.
- expertlaw |
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