A week ago, the New York Senate passed a bill making The Empire State the last state in the Union to possibly adopt the idea of a "no fault divorce."  Surprisingly, Oklahoma was the first state to pass this type of legislation all the way back in 1959, followed by California where no fault divorce became effective on January 1st 1970.  The California bill was signed into law by Ronald Reagan, who coincidentally (or not) is the only U.S. President ever to get a divorce. 

Before "no fault" was the rule of the land, a married person who sought a divorce had to show their spouse was "at fault" for causing the breakdown of the marriage.  Typical grounds included abandonment, adultery and insanity.  Naturally, this put very unsavory issues in front of the judge as a preliminary matter in every divorce action.  Private eyes built a cottage industry around the quest to prove infidelity by lurking in the bushes at night with fancy cameras equipped with long telephoto lens.  Other spouses creatively stretched the definition of "abandonment" to the logical breaking point.  No doubt, this earlier era of family law contributed to the negative connotations held by the public about "slimy" divorce attorneys.  Sadly, this perception is still widely held.

Today, getting a divorce is much more cut and dry, especially in community property states such as California.  The court is focusing on creating an equal distribution of community property and setting support according to a complicated mathematical formula.  This is not the say difficult legal issues will not arise -- they can and do on a regular basis.  However, they are usually limited to snoozers such as complex tracing and valuation issues  Overall, elimination of fault has made the process much more dignified, assuming the parties approach it with a certain level of emotional maturity.  The reasons for the divorce rarely creep into the proceedings except in limited circumstances. 

The first is through the backdoor of custody disputes when the "bad" spouses behavior could affect the best interests of the child analysis.  Marital drama also tends to seep into the proceedings when allegations of domestic violence are present.  In some ways, California law encourages these allegations because under the Family Code, if a person has a domestic violence restraining order against him, it may adversely affect their custody rights.  And custodial timeshare in turn affects child support payments.  Similarly, California law provides that a documented spouse abuser may not be entitled to spousal support.

Oddly, The National Organization for Women opposed New York's adoption of no fault divorce laws.  Marcia Pappas, the head of the state office expressed skepticism over it's goals.   .

"Whenever we see a major push for a change in the law in this building, the bottom line is green," Pappas said. "There are people who are going to benefit monetarily from pushing this bill -- the New York State Bar, the Women's Bar, they're all going to get new clients. These are also the people that write very big, fat checks to the campaigns of these same people who are running for office. ***  [The end result of New York adopting the law would be] "plunging more women and children into poverty."

I believe these fears are entirely unfounded.  The family law court is well equipped to handle issues of child and spousal support as they arise.  Removing fault from divorce proceedings does not change this.

-- Michael

P.S.  For further reading, see this interesting article on Lemondrop that asks, is it good for women?  Professor Carol Sanger from Columbia Law School comments in detail.