I’m a bit of a dinosaur. If you want evidence of that – look at my bar number. It’s Bar
Number 613. Today, I see bar numbers in the thousands, so I accept the fact that I am a fossil.
I’m so much of a fossil that I was there when no-fault divorce legislation was put in
place. I began practicing in 1973. No-fault divorces began in 1971.
Why do I bring this up? I bring it up because prior to 1971, a married person couldn’t get
a divorce unless they could prove fault on the part of their married partner. They had eight
choices and I’m betting you couldn’t guess all eight. There was impotency (did you guess this
one). There was adultery (you knew that one). Then there were two causes of action that are the
flip side of the same coin – extreme cruelty (physically striking your spouse) and treatment as to
seriously injury health or endanger reason (emotional harm, verbal abuse).
You could get a divorce if your spouse was convicted of a felony as long as they were
actually imprisoned. Apparently, you were stuck with the one who was just put on probation.
Then there was desertion – your spouse took off for two years and wasn’t heard from during that
period of time. Habitual drunkardness was a cause of action as long as they stayed that way for
two years or more. Finally, there was a cause of action that dealt with a spouse joining a
religious sect or society that professes to believe the husband and wife relationship to be
unlawful. This was a cause of action as long as the spouse refused to live with the other spouse
for six months or more. I wonder what religion professed that?
Over time, I’ve learned that it is not enough to be able to prove the mere existence of one
of the eight fault grounds. I’ve learned you also have to prove that the fault ground caused the
breakup of the marriage. I’ve seen marriages where fault occurred but the marriage remained
intact. Not everyone rejects the “sinner.”
In addition, there is the notion of mental pain and suffering as a result of the commission
of fault. If there is no emotion involved, you don’t get very far. In fault divorces, there is a
person with a white hat and a person with a black hat. In fault divorces, someone is punished for
their wrongdoing. Punishment doesn’t necessarily occur just by being divorced on fault grounds.
The punishment frequently shows up in parenting plans and in generous property settlements for
the innocent spouses. There is less parenting time for a wrongdoer and less property as well.
Fault divorces aren’t for everyone. But, when fault grounds exists, they should be plead
because only in that way can truly equitable results be achieved.