With Justice for ALL (quote from the pledge of allegience U.S.A.)
This is an informational website offering support not legal advise
Grounds, Consequences, Reform Movement, Domestic Violence
3 The Pharisees also came unto him, tempting him, and saying unto
him, Is it lawful for a man to put away his wife for every cause?
4 And he answered and said unto them, Have ye not read, that he which made [them] at the beginning made them male and female,
5 And said, For this cause shall a man leave father and mother, and shall cleave to his wife: and they twain shall be one flesh?
6 Wherefore they are no more twain, but one flesh. What therefore God hath joined together, let not man put asunder.
7 They say unto him, Why did Moses then command to give a writing of divorcement, and to put her away?
8 He saith unto them, Moses because of the hardness of your hearts suffered you to put away your wives: but from the beginning it was not so.
9 And I say unto you, Whosoever shall put away his wife, except [it be] for fornication, and shall marry another, committeth adultery: and whoso marrieth her which is put away doth commit adultery.
10 His disciples say unto him, If the case of the man be so with [his] wife, it is not good to marry.
11 But he said unto them, All [men] cannot receive this saying, save [they] to whom it is given.
12 For there are some eunuchs, which were so born from [their] mother's womb: and there are some eunuchs, which were made eunuchs of men: and there be eunuchs, which have made themselves eunuchs for the kingdom of heaven's sake. He that is able to receive [it], let him receive [it].
-Matthew 19:3-12 (KJV)
a. History of Divorce Grounds and Procedures. Historically, divorce, like marriage, was primarily a matter of ecclesiastical regulation. And during most of Christian-European history, the Church did not generally permit divorce. Marriage was terminable by annulment, on rather narrow grounds; otherwise, most persons who were unhappily yoked only could obtain what today would be called a formal separation (divoce a mensa et thoro). Divorce came to Christian Europe with the Protestant Reformation.
England was slower than some continental countries to embrace
the Reformation, and was likewise slower to permit divorce. Ecclesiastical (canon)
law remained in place until Henry VIII's famous break with the Catholic church
in 1529 over its refusal to grant him a divorce. Yet even after England separated
from the Catholic Church, divorce remained very rare. "For instance, between
1670 and 1857, only 375 divorces were granted in England. Obtaining a divorce
before 1857 required an act of the English Parliament. Most of the divorces
were granted for 'great families' and 'special cases.'"
While England had ecclesiastical courts to govern domestic relations
prior to the mid-nineteenth century, the United States had no comparable mechanism.
During this period, the state of divorce and divorce law in America differed
depending upon the geographical area of the country. In New England, the Puritans
legalized divorce in the mid-1600s. The Puritans viewed marriage as a civil
contract that could be terminated, rather than a sacrament that could not end
except upon a spouse's death. Even with divorce a possibility, the states of
New England granted no more than ninety divorces before 1700. Some of the middle
colonies enacted limited divorce laws; however, these laws generally only allowed
a governor to grant a divorce. The Southern colonies remained conservative and
did not grant divorces. Divorce during the American colonial period was rare,
just as it was in England.
In general, the Northern states were quicker to transfer the power of divorce from the legislature to the courts than the Southern states. The Southern states began the process in the 1830s, approximately twenty to forty years after the Northern states.
[During the nineteenth century, even though both legislative and judicial divorces were available, they were neither common nor popular.] "The [Tennessee] Legislature granted only 26% of the legislative divorce petitions. According to scholars, Tennessee courts were equally intolerant." Southern judges 'looked with disfavor upon divorce and often gave conservative readings to general divorce statutes.'"
Gary H. Nichols, Note, Covenant Marriage: Should Tennessee Join the Noble Experiment? 29 U. Mem. L. Rev. 397 (1999)
b. Traditional Fault Grounds for and Defenses Against Divorce. By the end of the nineteenth century, all states allowed divorce in cases where one party's marital conduct fell below minimum standards of social tolerance. Divorce laws defined the outer boundaries of marital misbehavior that society deemed necessarily tolerable and provided an aggrieved spouse with an escape hatch to terminate a marriage to a partner whose misconduct was intolerable. The defendant spouse had to have breached the core, material terms of the marital contract. Thus, divorce law sketched the boundaries of the marital contract. The theory of breach of the marital contract provided a solid paradigm for reconciling the cases and doctrines. The breach had to be substantial because the public policy in favor of upholding marriages was very strong. Margaret F. Brinig, Chapter 19, Divorce -- Fault Grounds in 3 Contemporary Family Law (1988).
Today, fault grounds for divorce survive in most states, along-side
of no-fault divorce grounds. The most common statutory fault grounds for divorce
in America are adultery and desertion. Nearly two-thirds of the American states
provide for divorce on these grounds. Adultery had to involve consensual sexual
intercourse with a person other than the spouse; thus neither rape nor non-intercourse
sexual conduct was ground for divorce as adultery. Elaborate rules of proof
were developed to protect the defendant (because adultery was also a crime),
as well as to avoid collusion. Many cases involved testimony of private investigators,
which added an unseemly quality to the judicial proceeding and contributed to
the adoption of no-fault divorce. Desertion is the voluntary departure from
the marital abode without the other spouse's fault, consent or acquiescence,
and the living apart for a specified time. Construction desertion could occur
when the parties continued to live together but one refused to perform marital
duties, including marital sexual relations, or where the leaving party had been
forced out by the deserting party. In some states, nonsupport was also an element
of the cause of action. Id.
In more than 20 states divorce is available on grounds of separation
for a specified period. The length of time required varies from six months to
three years. Usually a judicial decree of separation is required. Generally
sporadic sex or dating after separation does not defend a claim for divorce
on the ground of separation; but resuming husband-wife relations does.
Nearly as many jurisdictions allow divorce on grounds of mental
illness or insanity. Usually special procedures must be followed in divorce
proceedings alleging this ground. Generally permanent incompetence is necessary,
a guardian ad litem must be appointed, and the court takes care to see that
the estate and interests of the incompetent spouse are fairly treated.
Half of the states allow for divorce on the grounds of in human
treatment or cruelty. Traditionally "cruelty" was strictly construed
to authorize divorce only for objectively severe mistreatment (originally only
physical cruelty), and many cases still distinguish "cruelty" from
mere "indignities." But generally cruelty is established if the complainant
convinces the court that the defendants conduct has made marriage objectively
intolerable for him or her. "Mental cruelty" was adopted expressly
by legislation in some states, and by judicial interpretation in others. Over
the years, courts became lenient about what constituted sufficient "mental
cruelty" to justify a divorce, and in practical effect, "cruelty"
became the first "de facto" no-fault divorce grounds in some courts
because any subjective designation of cruelty was sufficient.
Nearly half of the states allow divorce for habitual intoxication
or addiction to drugs. Usually, however, a time period (to allow rehabilitation)
is required for divorce on this ground. The nature of the problem had to be
severe, as indicated by the modifier "habitual" used in most statutes.
Conviction of a felony or crime involving moral turpitude is a
ground for divorce in about 16 jurisdictions. In another 12 states imprisonment
is a ground for divorce.
There are, of course, many other grounds for divorce specified
in the divorce statutes the 51 American jurisdictions. In total, there are 32
different grounds for divorce specified in these statutes. In some states particular
defects which otherwise might render the marriage invalid are specifically listed
as grounds for divorce, giving the offended party the option of suing for annulment
Even the old "fault" divorce statutes provided for some
no-fault divorces. For example, insanity was one of the traditional grounds
for divorce. Most jurisdictions allowed divorce on grounds of insanity of the
defendant spouse, even though this was technically not a "fault" ground
for divorce, but a no-fault ground (i.e., the defendant did not choose to become
insane, but the condition of insanity was deemed to render the marriage intolerable
enough to justify divorce and allow the sane spouse to marry another). Likewise,
many jurisdictions permitted divorce when the parties had lived separate and
apart from each other for a period of time (usually under a decree of separation).
Unless the separation decree could only be obtained for reason of fault, this
would constitute another "no fault" ground for divorce under traditional
fault divorce schemes.
Because the substantive grounds for divorce were specific and substantial, a number of specialized substantive defenses developed as well. These defenses were the source of much consternation and some of the criticism of traditional divorce. As traditional grounds for divorce still survive in many states, many of the traditional defenses also survive. For instance, the traditional defense of collusion is still specifically authorized by statute in 10 states, but statutorily abolished in 4 others. Collusion was a defense based on fraud in creating or establishing a ground for divorce and was aimed at preventing agreements by spouses to circumvent strict divorce laws by fabricating the grounds for divorce.
The traditional defense of recrimination is listed as a defense in statutes in 4 states, but rejected by statute in 12 others. Recrimination was essentially the unclean hands defense. The recrimination defense alleged that the plaintiff was guilty of equally serious grounds for divorce and thus, as a matter of equity, was not entitled to the relief sought.
Provocation was a related defense. Provocation was based on the notion of retaliation--that the defendant's marital misconduct was provoked by the plaintiff's misconduct. In 5 states condonation is still statutorily mentioned as a valid defense (and forgiveness is mentioned in another), while 8 other states specifically abolish condonation as a defense.
Condonation was a defense based on forgiveness of the marital offense. Many cases held that sexual intercourse by the offended party with the offending party after the offense and with knowledge of it constituted condonation and prohibited the use of the marital offense as a ground for subsequent divorce.
Connivance is specifically mentioned as a valid defense in 4 states by statute, and repudiated in 3 others. Connivance was a defense based on the participation of the spouse seeking in divorce and developing grounds for divorce by actually and intentionally creating an opportunity for divorce (e.g., "smoothing the path to the adulterous bed"). Insanity is specified as a statutory defense in 1 state, and rejected in 2 others. Delay or inappropriate lapse of time between the marital offense and bringing the action for divorce is specified as a defense in 5 jurisdictions by statute, and abolished in 2 others.
Insanity has been traditionally a defense to fault divorce (except
to divorce for reason of insanity). In 1986 the Tennessee Supreme Court ruled
that when insanity is raised as a defense to divorce on the ground of cruelty,
the defendant bears the burden of showing that at the time of the cruel behavior
she or he lacked sufficient capacity to appreciate the wrongfulness of the cruelty
action and to control his or her own actions. This is essentially the insanity
standard required in criminal cases. Simpson v. Simpson, ___ S.W.2d ___ (Tenn.
1986). Of course, he trend of legislation, especially since enactment of "no-fault"
divorce has been to restrict or abolish the traditional divorce defenses.
d. A Short History of the Adoption of No-Fault Divorce Laws in the United States. The following excerpt is taken from Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 B.Y.U. L. Rev. 79, 83-96.
In 1969, California became the first jurisdiction in America (and in the western world) to adopt a modern, purely "no-fault" divorce law when it passed the Family Law Act of 1969, which became effective in 1970. Previously the statutory grounds for divorce in California, as in most other states, consisted of several specific fault grounds, plus insanity.
The 1969 Act eliminated all fault grounds for divorce and provided
that, apart from the rare case of "incurable insanity," marriage could
be terminated only upon the ground of "irreconcilable differences which
have caused the irremediable breakdown of the marriage." The statute defined
"irreconcilable differences" and "irremediable breakdown"
in the broadest terms. The new, simplified judicial procedure was called an
action for "dissolution of marriage" instead of an action for divorce,
and evidence of marital misconduct was declared to be "improper" and
The movement to modify California's divorce law actually began in 1963 "as an effort . . . to stem the rising tide of divorce [and] to lessen the very high divorce rate of the state as a whole and of some counties in particular." Legislative hearings in 1964 and an inconclusive legislative report in 1965 focused on "the incidence of family instability" and recommended further study.
In 1966, the Governor of California appointed a Governor's Commission on the Family to study the problem and recommend a solution. Some members of the Commission, including Professor Herma Hill Kay of Boalt Hall Law School at the University of California at Berkeley, strongly favored the adoption of no-fault divorce grounds. In December 1966, the Commission submitted its final report recommending the elimination of all fault-grounds for divorce, as well as the adoption of an extensive family court system.
Although a bill implementing the recommendations of the Commission
was introduced the following year, it lay quietly in the legislature until 1969,
when, revised to eliminate the creation of the controversial family court system,
it passed with surprisingly little public opposition.
Nineteen sixty-six was a watershed year for no-fault divorce reform. While the California Governor's Commission was meeting in 1966 and preparing its report endorsing no-fault divorce grounds, it received a significant boost from the publication of the widely-heralded report of a group of distinguished individuals appointed by the Archbishop of Canterbury to make recommendations regarding reform of the fault-grounds for divorce in England. Their 1966 report, entitled Putting Asunder: A Divorce Law for Contemporary Society, acknowledged the shortcomings of the existing fault-based divorce system and suggested that divorce morally could be granted when there was such a complete "failure in the marital relationship" that the substance of the relationship had come "unmistakably and irreversibly to an end." However, the Archbishop's group also recommended that a thorough judicial "inquest" be conducted by the courts before granting divorce upon such grounds and rejected the concept of unilateral divorce (or even a right to divorce upon mutual consent).
The report of the Archbishop's group was referred to the English Law Commission, which issued another report endorsing the marital breakdown principle and recommending that English divorce law be reformed to permit divorce with "the maximum of fairness, and the minimum of bitterness, distress, and humiliation" when it was determined that a marriage was irretrievably broken.
Three years later, the British Parliament passed the Divorce Reform
Act, 1969, which provided that divorce could be granted upon one ground only,
"irretrievable breakdown." The Act further provided that irretrievable
breakdown had to be shown by proof of traditional marital fault, living separate
and apart for five years, or living separate and apart with mutual consent for
two years. These developments in England did much to legitimize divorce reform
in the United States, and while California's no-fault divorce law constituted
a much more radical departure from the traditional divorce methods than the
English law, the divorce reform movement in England undeniably helped clear
the path for California's divorce reform.
The California divorce reform also benefited from the reform of
New York's divorce laws in 1966 and 1968. Before 1966, New York had not significantly
reformed its substantive divorce law since it had been drafted by Alexander
Hamilton in 1787. Divorce was permitted only upon proof of adultery. In 1965,
the state legislature conducted public hearings at which strong support was
provided for reforming New York divorce law. After "considerable maneuvering"
to defuse any significant opposition, a divorce reform bill was passed in 1966
that added other "fault" grounds for divorce, including cruel and
inhuman treatment that threatened the physical or mental well-being of the plaintiff
and abandonment for two or more years. The divorce reform law also permitted
divorce upon living apart for two years pursuant to a decree of separation or
written separation agreement.
The no-fault divorce movement was further enhanced when the prestigious National Conference of Commissioners on Uniform State Laws (NCCUSL) endorsed no-fault divorce. By 1966, the NCCUSL had begun its own consideration of divorce law reform. By 1967, Professor Robert J. Levy of the University of Minnesota Law School had been appointed reporter for the drafting committee and had prepared a monograph recommending that irremediable marriage breakdown be adopted as the exclusive ground for divorce. Professor Levy was later joined by Professor Herma Hill Kay, who had been instrumental in California's trail-blazing no-fault reform effort. The proposals Professors Levy and Kay submitted to the NCCUSL committee were "little different from the approach of breakdown pure and simple that was to become the law of California."
By the time the NCCUSL debated its committee's proposal, California
had already acted. In 1970, shortly after the nation's first modern no-fault
divorce law took effect in California, the NCCUSL voted to propose a Uniform
Marriage and Divorce Act (UMDA) in which the sole ground for divorce was a modern
no-fault ground. While acknowledging "the State's interest in the stability
of marriages," the NCCUSL proposed to "totally eliminate the traditional
concept that divorce is a remedy granted to an innocent spouse." The UMDA
draft that was approved by the NCCUSL in 1970 authorized the dissolution of
marriage solely upon the ground "that the marriage is irretrievably broken."
Moreover, it explicitly provided that property division, spousal maintenance,
and child support decisions were to be made "without regard to marital
misconduct." Thus, in some respects, it represented a more radical or more
complete departure from prior concepts of marriage and divorce than the California
For various reasons, the American Bar Association initially declined
to endorse the proposed UMDA. Extensive negotiations between the NCCUSL and
the ABA followed, and in 1973, the NCCUSL adopted relatively minor revisions
to the UMDA. The following year, the ABA approved the revised UMDA.
Altogether, these developments ignited a movement to reform divorce
laws that quickly spread throughout the United States. After California adopted
its no-fault divorce law in 1969, "[n]o-fault divorce spread like a prairie
fire." Between 1971 and 1977, eight states adopted the UMDA at least in
part and more than three times that number of states adopted some other form
of no-fault divorce. By 1989, forty-nine states and the District of Columbia
had explicitly adopted some "modern no-fault" ground for divorce.
Currently, statutes in twenty American jurisdictions provide that
divorce is generally available solely upon modern no-fault grounds. In fifteen
of these states, "irretrievable breakdown" of the marriage, or "irreconcilable
differences" between the spouses is the sole statutory ground for divorce.
In two other jurisdictions, the sole ground for divorce is that the parties
have lived separate and apart for a short period of time (i.e., not more than
one year). In the other three exclusively no-fault states, irretrievable breakdown
(or incompatibility) and living separate and apart for a short period of time
are alternative grounds for divorce.
In thirty states, the legislatures have added at least one modern
no-fault ground for divorce as an alternative to fault-grounds for divorce.
Nineteen of these states simply have added marital breakdown, incompatibility,
or irreconcilable differences to the traditional grounds for divorce. One state
added both a modern breakdown provision and a modern "short separation"
provision as alternatives to the traditional fault grounds for divorce. Three
others have added a combined requirement of both irretrievable breakdown and
a short separation to the traditional grounds for divorce. The remaining seven
of these thirty states have added living separate and apart for a short period
of time as the sole no-fault ground for divorce to the list of traditional grounds
In total, forty-one states have adopted modern no-fault language
(breakdown, incompatibility or irreconcilable differences) as the exclusive
or an alternative ground for divorce (including seven states that have adopted
both modern no-fault terms and short separation periods), and eight other states
and the District of Columbia have adopted a short separation period as their
modern no-fault ground for divorce. Only one state, Arkansas, does not have
a modern no-fault divorce provision of any kind.
[The pro-no-fault divorce reform legal literature of the 1960s and 1970s asserted] four general reasons or arguments for the adoption of no-fault divorce grounds.
First, no-fault divorce grounds were deemed desirable to reduce
the hostility and distress of persons involved in divorce. Requiring proof of
marital fault in all cases, subject to harsh and antiquated defenses (e.g.,
recrimination, condonation, collusion, connivance) which historically could
preclude divorce even if fault were proven, was widely criticized for breeding
costly, bitter, counterproductive litigation that impeded reconciliation. The
adversary system and fault-laying substantive grounds proved unworkable. As
two advocates of no-fault divorce wrote:
Perhaps the most damaging result of a "fault"-based
divorce procedure is that it exacerbates the aggressive forces that may be already
undermining the family. It dissipates family emotional and financial resources
at a time when they are most needed. The hatred, bitterness, and resentment
fed by a drawn- out divorce are likely to destroy the possibility of reconciliation
and distort the negotiations and proceedings designed to resolve the very difficult
and emotionally-freighted issues of finance and child custody.
Second, advocates of no-fault divorce argued that adoption of no-fault was necessary to protect the integrity of the legal system. There was, in fact, a "tide of discontent" over "the trail of perjury and subterfuge that [traditional fault-based divorce grounds] ha[d] brought into the courts."
Thus, advocates of no-fault divorce argued that the integrity and respectability of the legal system and all involved with it would be improved if no-fault divorce grounds were adopted because "sham grounds," "sham residence," "collusion, perjury and hypocrisy" would disappear.
Third, the gap between the law-as-written and the law-as-applied was the focus of another major argument for the adoption of no-fault divorce. Realistically, divorce by mutual consent was generally available without fault before 1970, through collusion or migratory divorce. In states like California, in which mental cruelty was a ground for divorce, ninety-five percent of all divorces were obtained on that ground, which functioned as a de facto no-fault ground. Nationally, unilateral, uncontested, or mutual consent divorces constituted approximately ninety percent of all divorce cases. There was, in reality, a "dual law" of divorce: one on the books (strict, fault- based, adversarial) and another in practice (permissive, uninterested, and accommodating) if the parties had worked out the terms of their divorce to their mutual satisfaction.
Most states allowed divorce to be granted upon the ground of "cruelty,"
which could be very loosely interpreted, and a handful of states had already
adopted "incompatibility" or other cautious non- fault divorce grounds
before California's "pure" no-fault statute was enacted. "The
cooperation of the courts ha[d] made it possible for the great bulk of divorces
to be obtained upon the ground of mutual consent . . . . "
Moreover, the inability of the law to enforce its policy beyond
the realm of formalities was obvious: it could not force an unhappy spouse to
live with a despised partner; abandonment--sometimes known as the "poor
man's divorce," "common law divorce," or "de facto divorce"--has
long been practiced. *** The English Law Commission estimated that nearly 20,000
children were born out of wedlock every year because access to divorce was so
restrictive that their parents simply cohabited as lovers without bothering
to get a divorce from their legal spouses. Thus, advocates of no-fault divorce
argued that adoption of no-fault divorce would bring the written law into conformity
with the law-as-applied.
The fourth argument asserted that basic notions of marriage and
divorce had changed and that no-fault divorce more accurately reflected modern
conceptions of terminating marital relations than did the prior laws. The notions
that marital breakdown was the "fault" of one spouse entirely and
that divorce was both a remedy awarded to the innocent spouse and a judgment
imposed against the faulty spouse were widely rejected. *** Thus, by 1960, it
was widely believed "that the fault grounds for divorce were usually symptoms
rather than causes of the difficulties in marriages" and that the fault-based
divorce system was "obsolete and mischievous."
Replacing the old fault-notion of divorce was the assertion that
divorce was a private matter that the state had no legitimate interest to restrict
when the marriage was irretrievably broken and the parties to the marriage had
agreed to terminate the marriage. The thrust of this privacy argument went to
protecting parties from unnecessary distress and embarrassing public disclosures.
It was argued that requiring disclosure of "the most intimate and often
embarrassing details of marital life" is "abhorrent to the community,"
violated the spirit of family privacy, and worked only to "demean the marriage
relationship, humiliate the parties, and damage the residual family relationships."
New: Because in most states, there is no meaningful substantive
defense to a no-fault divorce claim, procedural defenses have replaced the traditional
substantive defenses to modern no-fault divorce. The most common appears to
be lack of jurisdiction -- either because one or both of the parties is beyond
the territorial jurisdiction (and the absence of one of the parties is not necessarily
a jurisdictional defect), or because some factor in the description of the subject
matter jurisdiction of the state court is missing. Time-of-residency requirements
are the most common of these defenses.
2. Cases and Statutes
a. Utah Code Annot. 30-3-1 Procedure --Residence --Grounds.
(3) Grounds for divorce:
(a) impotency of the respondent at the time of marriage;
(b) adultery committed by the respondent subsequent to marriage;
(c) willful desertion of the petitioner by the respondent for more than one year;
(d) willful neglect of the respondent to provide for the petitioner the common necessaries of life;
(e) habitual drunkenness of the respondent;
(f) conviction of the respondent for a felony;
(g) cruel treatment of the petitioner by the respondent to the extent of causing bodily injury or great mental distress to the petitioner;
(h) irreconcilable differences of the marriage;
(i) incurable insanity; or
(j) when the husband and wife have lived separately under a decree of separate maintenance of any state for three consecutive years without cohabitation.
(4) A decree of divorce granted under Subsection (3)(j) does not affect the liability of either party under any provision for separate maintenance previously granted.
(5) (a) A divorce may not be granted on the grounds of insanity unless:
(i) the respondent has been adjudged insane by the appropriate authorities of this or another state prior to the commencement of the action; and
(ii) the court finds by the testimony of competent witnesses that the insanity of the respondent is incurable.
(b) The court shall appoint for the respondent a guardian ad litem who shall protect the interests of the respondent. A copy of the summons and complaint shall be served on the respondent in person or by publication, as provided by the laws of this state in other actions for divorce, or upon his guardian ad litem, and upon the county attorney for the county where the action is prosecuted.
(c) The county attorney shall investigate the merits of the case and if the respondent resides out of this state, take depositions as necessary, attend the proceedings, and make a defense as is just to protect the rights of the respondent and the interests of the state.
(d) In all actions the court and judge have jurisdiction over the payment of alimony, the distribution of property, and the custody and maintenance of minor children, as the courts and judges possess in other actions for divorce.
(e) The petitioner or respondent may, if the respondent resides in this state, upon notice, have the respondent brought into the court at trial, or have an examination of the respondent by two or more competent physicians, to determine the mental condition of the respondent. For this purpose either party may have leave from the court to enter any asylum or institution where the respondent may be confined. The costs of court in this action shall be apportioned by the court.
b. Dana A. DESROCHERS v. Real J. DESROCHERS
347 A.2d 150 ( N.H. 1975)
KENISON, Chief Justice.
The parties married in September 1970. Their only child, a daughter, was born in January 1973. The parties separated in May of that year and the wife brought this libel for divorce the following September. A month later the parties agreed to and the court approved arrangements for custody, visitation and support. The defendant did not support his wife and child from the time of separation until the temporary decree. He made the payments called for by the decree from its entry until June 1975. In July 1974, the Hillsborough County Superior Court, Loughlin, J., held a hearing and made certain findings of fact. The critical portion of these findings is: '(T)he action was originally brought because the defendant did not work steadily and stated that he, when he learned that the plaintiff was pregnant, wanted a boy instead of a girl; if the plaintiff bore a girl he would like to put the child up for adoption. After the birth of the child (a daughter) the defendant became very attached to the child, has visited the child weekly except on two occasions, and has been faithfully making support payments under the temporary order of $25.00 a week. The defendant claims that he loves his wife, does not want a divorce. The wife claims that she no longer loves her husband, but since the filing of the divorce he has been an industrious worker and is very attached to the child.' The superior court transferred without ruling the question 'whether, on all the findings of fact, cause exists for granting a divorce under the provisions of RSA 458:7-a.'
This appeal was argued in September 1975. At the argument counsel
informed the court that the defendant had stopped making support payments and
had gone to Nevada in June 1975. At that time he had written to his attorney
expressing his desire to remain married.
RSA 458:7-a (Supp.1973) provides: 'A divorce from the bonds of matrimony shall be decreed, irrespective of the fault of either party, on the ground of irreconcilable differences which have caused the irremediable breakdown of the marriage. In any pleading or hearing of a libel for divorce under this section, allegations or evidence of specific acts of misconduct shall be improper and inadmissible, except where child custody is in issue and such evidence is relevant to establish that parental custody would be detrimental to the child or at a hearing where it is determined by the court to be necessary to establish the existence of irreconcilable differences. If, upon hearing of an action for divorce under this section, both parties are found to have committed an act or acts which justify a finding of irreconcilable differences, a divorce shall be decreed and the acts of one party shall not negate the acts of the other nor bar the divorce decree.'
This section must be applied in conjunction with RSA 458:7-b (Supp.1973)
which precludes divorce when 'there is a likelihood for rehabilitation of the
marriage relationship' or when 'there is a reasonable possibility of reconciliation.'
Woodruff v. Woodruff, 114 N.H. 365, 367-68, 320 A.2d 661, 663 (1974).
RSA 458:7-a (Supp.1973) is the product of a national discussion regarding the proper grounds for divorce. It follows in important respects the California Family Law Act of 1969. That statute, and others following it, have been criticized for vagueness, but have been held to be sufficiently definite to afford due process of law. Ryan v. Ryan, 277 So.2d 266 (Fla.1973); In re Marriage of Walton, 28 Cal.App.3d 108, 104 Cal.Rptr. 472 (1972). A consensus has emerged that a period of separation due to marital difficulties is strong evidence of the irremediable breakdown of a marriage. Cf. RSA 458:7 VI through XIII. These developments can be traced in the following commentaries: Bodenheimer, Reflections on the Future of Grounds for Divorce, 8 J.Fam.L. 179, 198-207 (1968); Foster and Freed, Divorce Reform: Brakes on Breakdown?, 13 J.Fam.L. 443, 448-453 (1973); Zuckman, The ABA Family Law Section v. The NCCUSL: Alienation, Separation and Forced Reconciliation over the Uniform Marriage and Divorce Act, 24 Cath.U.L.Rev. 61 (1974); and Annot., 55 A.L.R.3d 581 (1974).
When asked to interpret a statute similar to RSA 458:7-a, the
Florida Court of Appeal stated: 'The Legislature has not seen fit to promulgate
guidelines as to what constitutes an 'irretrievably broken' marriage. It is
suggested that this lack of definitive direction was deliberate and is desirable
in an area as volatile as a proceeding for termination of the marital status.
Consideration should be given to each case individually and predetermined policy
should not be circumscribed by the appellate courts of this State.
'Thus, we are hesitant to set forth specific circumstances which trial courts could utilize as permissible indices of an irretrievable breakdown of the marital status. Were we to attempt to do so, we feel that the basic purpose of the new dissolution of marriage law would be frustrated. Such proceedings would either again become primarily adversary in nature or persons would again fit themselves into tailor-made categories or circumstances to fit judicially defined breakdown situations. It is our opinion that these two problems are the very ones which the Legislature intended to eliminate.' Riley v. Riley, 271 So.2d 181, 183 (Fla.App.1972).
The existence of irreconcilable differences which have caused
the irremediable breakdown of the marriage is determined by reference to the
subjective state of mind of the parties. Woodruff v. Woodruff, 114 N.H. 365,
367, 320 A.2d 661, 663 (1974). While the desire of one spouse to continue the
marriage is evidence of 'a reasonable possibility of reconciliation,' it is
not a bar to divorce. If one spouse resolutely refuses to continue and it is
clear from the passage of time or other circumstances that there is no reasonable
possibility of a change of heart, there is an irremediable breakdown of the
marriage. H. Clark, Jr., Domestic Relations, s 12.5, at 351 (1968). Comment,
Irreconcilable Differences: California Courts Respond to No-fault Dissolutions,
7 Loyola of L.A.L. Rev. 453, 459-60, 466, 485 et seq. (1974). The defendant
may attempt to impeach the plaintiff's evidence of his or her state of mind
regarding the relationship. If the trial court doubts plaintiff's evidence that
the marriage has irremediably broken down, the court may continue the action
to determine if reconciliation is possible. However, if the parties do not reconcile,
dissolution should be granted.
Knowledge of the sources of marital discord is helpful in determining
whether a breakdown is irremediable or whether there is a reasonable possibility
of reconciliation. Yet the statutory test is the existing state of the marriage.
The statute authorizes the trial court to receive evidence of specific acts
of misconduct where it is determined by the court to be necessary to establish
the existence of irreconcilable differences. This authority is an exception
to the general rule of the statute excluding such evidence, and the intent of
the statute to minimize the acrimony attending divorce proceedings.
The question whether a breakdown of a marriage is irremediable is a question to be determined by the trial court. Woodruff v. Woodruff, 114 N.H. 365, 367, 320 A.2d 661, 663 (1974). RSA 458:7-a contemplates the introduction of factual testimony sufficient to permit a finding of irreconcilable differences which have caused the irremediable breakdown of the marriage. Rodrique v. Rodrique, 113 N.H. 49, 52, 300 A.2d 312, 314 (1973).
Nevertheless there are limits to the inquiry. 'In the first place, there is the natural tendency to withhold information of a personal nature from anyone but a trusted and discreet adviser; secondly, any probing into personal matters against the wishes of the party examined would be objectionable . . .; and thirdly, the parties have come to court for a purpose. Their answers, which may be perfectly honest ones, will inevitably be slanted in the direction of their ultimate goal, which is divorce.' Bodenheimer, supra at 200 (1968).
Within these limits the trial court must be adequately informed
before acting in matters of such importance. But the statute does not contemplate
a complete biopsy of the marriage relationship from the beginning to the end
in every case. This is a difficult task, but judges face similar problems in
other cases. See Ballou v. Ballou, 95 N.H. 105, 58 A.2d 311 (1948).
The separation of the parties for two and one-half years and the
plaintiff's persistence in seeking a divorce during that period is evidence
from which the trial court could find that this marriage has irremediably broken
c. Paul Edmond HAUMONT v. Miche Jean Arnold Evans HAUMONT
793 P.2d 421 (Utah Ct. App. 1990)
Before BILLINGS, GARFF and GREENWOOD, JJ.
Appellant Paul Edmond Haumont appeals the terms of his divorce from appellee Miche Jean Arnold Haumont. We reverse and remand.
Appellant and appellee were married on November 30, 1984, and separated in July 1987. No children were born from their three and one-half year marriage. Both parties had previously been married and divorced.
The trial was held in Kanab on September 12, 1988. Both parties were present, represented by counsel, and presented evidence concerning their irreconcilable differences, standard of living, premarital property, and respective financial situations. *** Appellee's counsel proffered an affidavit showing the amount of his attorney fees, which indicated a rate of $120 per hour plus costs.
The trial court found that the parties had irreconcilable differences
and awarded a divorce decree to appellee but not to appellant. ***
On appeal, appellant claims that the trial court erred in: *** (4) awarding a decree of divorce on the grounds of irreconcilable differences only to appellee. ***
IV. DECREE OF DIVORCE
Appellant objects to the trial court's award of a decree of divorce on the grounds of irreconcilable differences only to appellee and not also to him. He argues that it does not matter which party is at fault in an award of a divorce decree on the grounds of irreconcilable differences, but only that irreconcilable differences exist, and that the court was indicating that he was at fault for the divorce by refusing to grant him an award of divorce.
We agree with appellant. Utah Code Ann. § 30-3-1(3)(h) (Supp.1988) provides that the trial court may grant a divorce on the ground of "irreconcilable differences of the marriage." This language of subsection (h) does not specify the fault of either party. In contrast, several of the other subsections clearly indicate the fault of the defendant as the ground for divorce:
(a) impotency of the defendant at the time of marriage;
(b) adultery committed by the defendant subsequent to marriage;
(c) willful desertion of the plaintiff by the defendant for more than one year;
(d) willful neglect of the defendant to provide for the plaintiff the common necessaries of life;
(e) habitual drunkenness of the defendant;
(f) conviction of the defendant for felony;
(g) cruel treatment of the plaintiff by the defendant to the extent of causing bodily injury or great mental distress to the plaintiff....
Utah Code Ann. § 30-3-1(3) (Supp.1988).
Where a form of conduct referred to in a statute designates the persons and things to which it refers, "there is an inference that all omissions should be understood as exclusions." Sands, Sutherland Statutory Construction, § 47.23, at 194 (Singer 4th ed.1984). Because subsection (h) does not set forth a specific fault of the defendant, in contrast to these other subsections, we can infer that subsection (h), unlike the other provisions, is intended to be a no-fault provision. Therefore, we conclude that no fault need be proven or inferred from the operation of subsection (h).
Wyoming has a comparable statute. Its supreme court held that the statute "requires proof only of 'irreconcilable differences' to permit the court to award a decree of divorce. It matters not which party was at fault in bringing about the differences which cannot be reconciled. All that is required is that the irreconcilable differences exist." Grosskopf v. Grosskopf, 677 P.2d 814, 817 (Wyo.1984).
The trial court here found that irreconcilable differences existed
between the parties, but went on to state:
I do find that Mrs. Haumont had given up her home back there and has moved here and I just feel I should award the decree of divorce to Defendant [Mrs. Haumont], and I do award Defendant the decree of divorce in this matter and I just haven't seen where Mr. Haumont has suffered the problems that he says he's had. [Medical and psychological symptoms requiring treatment.]
We find that the court, despite the no-fault language of subsection
(h), found that appellant was at fault and, therefore, refused to grant him
a decree of divorce. This is improper, given the no-fault language of the statute.
We conclude that both parties are entitled to a decree of divorce.
Reversed and remanded for action consistent with this opinion.
BILLINGS and GREENWOOD, JJ., concur.
3. Notes and Questions
a. The Failure of the No-Fault Divorce Movement. In terms of the four major goals of the no-fault divorce reforms, it appears that no-fault divorce has spectacularly failed. The following excerpt is from Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 B.Y.U. L. Rev. 79, 99-112.
It is frequently stated that no-fault divorce reform has reduced the amount or intensity of hostility, acrimony, and unnecessary adversity in divorce proceedings. The conventional wisdom holds that this primary purpose of no-fault divorce reform has been achieved. For example,
*** the authors of a comprehensive evaluation of Nebraska's no-fault law reported that approximately two-thirds of the responding state court judges reported that there was less animosity under the no-fault divorce law.
But the authors of the Nebraska study further noted that there was a higher percentage of contested cases since the adoption of a no-fault divorce ground in Nebraska and suggested that "[s]ince fighting over who caused the breakup is futile, 'those who want a fight, now use collateral issues as the battle ground.'
Fights over custody and support are more prevalent and are often
just as acrimonious and humiliating as those over grounds, if not more so."
Anthropologist Paul Bohannon reported similar findings in a survey taken of self-identified "matrimonial lawyers" regarding the effects of no-fault divorce on their own family law practices.
Ninety-one percent reported that custody disputes had either increased (53%) or remained the same (38%) as before the adoption of no-fault divorce grounds, and 88% reported increased bitterness (44%) or at least as much bitterness (44%) in custody disputes.
In addition, 92% of the attorneys reported that the number of property disputes had either gone up (36%) or remained the same (56%) as before the adoption of no-fault divorce grounds, and 58% reported that there was greater bitterness (35%) or as least as much bitterness (23%) in property disputes as before.
Moreover, 90% reported that disputes over spousal support had either increased (34%) or remained the same (56%) as before the adoption of no-fault.
Overall, 64% of the respondents reported that the acrimony and hostility of divorce had either increased or remained the same since no-fault divorce laws were introduced.
The "doctoring" of testimony to establish a "fault" ground for divorce was one of the most highly-resented aspects of the old "fault" divorce scheme. Some divorce-seeking clients resented having to publicly charge and prove that their spouses had committed serious marital misconduct.
The adoption of no-fault grounds for divorce has provided a way for lawyers and clients to obtain mutual-consent divorces without stooping to such disreputable practices. There is no need to lie or even "finesse" the truth to obtain the termination of an unhappy marriage. *** Thus, it is fair to assume that no-fault divorce laws have reduced the total amount of perjury in divorce proceedings.
However, the adoption of no-fault grounds for divorce has not eliminated *** the incentive for parties to stretch the truth to get what they want in divorce proceedings. *** There is no more judicial scrutiny of no-fault grounds than there was of the fault grounds. It appears that one legal fiction (judicial scrutiny of no-fault grounds) has been substituted for another (judicial scrutiny of fault grounds).
Moreover, there are indications that no-fault grounds for divorce have only caused the lying to shift (as did the hostility) from the part of the proceeding dealing with the grounds for divorce to the collateral aspects, especially child custody and visitation disputes. For instance, the practice of one parent falsely accusing the other parent of child abuse, especially child sexual abuse, appears to have increased since the adoption of no-fault divorce grounds. Getting "control" or asserting "power" in custody matters has assumed even greater emotional significance since the elimination of marital fault has deprived spouses of the opportunity for official vindication of their comparative rectitude. Because the abandonment of maternal-preference rules and the adoption of "joint custody" have increased the legal risk that comparatively faultless mothers may lose a greater share of the post-divorce parental control of their children, the incentive to irresponsibly accuse the other parent of serious parental dereliction (in lieu of marital dereliction) has increased.
Advocates of no-fault divorce generally argued that adoption of no-fault grounds for divorce would not constitute an appreciable liberalization of the divorce law, but would merely be the "logical extension of existing practice."
However, in many states, the no-fault divorce laws that were enacted have done much more than explicitly authorize no-fault divorce by mutual consent (or by uncontested divorce), which was the variety of de facto no-fault divorce previously available.
In more than one-third of the states, the only ground for divorce
is a no-fault ground. In those states, judicial scrutiny of the causes of marital
failure is not permitted. Whereas the former practice allowed the parties the
choice to avoid airing their dirty laundry if they could work out their feelings
by other means, the current law in many states goes further and denies all parties
the choice to ask for a judicial determination (no matter how limited) of comparative
An even greater change wrought by the adoption of no-fault is
the legalization of unilateral no-fault divorce on demand. Under the former
law, parties could obtain a divorce without judicial scrutiny of the question
of marital misconduct only if both parties mutually agreed to it. Now the vast
majority of states have adopted no-fault divorce laws that make it possible
for one party unilaterally to obtain a no-fault divorce, despite the dissatisfaction
and objections of the other spouse.
Thus, it appears that the no-fault divorce reformers overshot their mark if they really intended to close the gap between law-as-written and law-as- applied.
[Finally,] reformers were correct when they asserted that ideas about marital relations have changed and that the requirement that "fault" be publicly charged and proved in every case in which divorce is sought no longer reflects modern ideas about marital privacy or marital failure.
The fact that both spouses share some of the responsibility for marital failure does not mean that spouses will never earnestly desire or (psychologically) need the opportunity for a formal judicial declaration of comparative marital rectitude. Nor does the fact that most couples can resolve the strong feelings they may have regarding marital failure by negotiations in the shadow of the law of marital fault without demanding trial of fault mean that all can do so (much less that all can do so when the law casting that shadow is removed). Apparently, feelings of anger and blame are still a very real dimension of the breakup of modern marriage. The "shifting" of hostility and perjury since the adoption of no-fault provides abundant evidence that the "nature" of marriage and human intimacy (or at least the psychological nature of men and women) has not changed as much as some reformers believed.
Privacy is another powerful component in the modern concepts of marriage and divorce. Ironically, the adoption of no-fault grounds has led to more, not less, public intrusion into individual and family privacy in regard to divorce. *** It appears that since the adoption of no-fault divorce grounds there is not only more litigation regarding collateral matters (such as custody and finances) at the time of divorce, but it seems that there also is significantly more follow-up litigation. More often, and for longer periods of time, divorced parties are returning to court demanding further judicial scrutiny of the vestiges of a previously-terminated marriage. As a result, not once but many times parties must open their private lives to the scrutiny of public (judicial) officials in formal court proceedings.
Moreover, the type of privacy of which most reformers spoke twenty years ago was not the unbridled freedom of individual choice. Few advocates of no-fault reform asserted that it was beyond the legitimate interests of the state to restrict divorce when one spouse wanted out of the marriage at any time, for any reason, without mutual consent. ***
The type of privacy that was asserted was the privacy of couples who had worked out their own differences and were seeking divorce mutually (or without any contest) not to have to publicly charge and prove the details of marital misconduct. Yet that mutual privacy is not what has resulted from the adoption of no-fault divorce laws. A more radical notion of individualistic privacy has supplanted the mutual privacy principle. No-fault divorce laws in most American jurisdictions allow any spouse unilaterally to obtain a decree terminating the marriage, without any real judicial examination into the nature of the relationship or cause of breakdown.
Modern no-fault divorce laws embody a more atomistic notion of
privacy than mainstream advocates of no-fault divorce asserted twenty years
In addition to failing to achieve the four major objectives of no-fault divorce reform, there have been some severe unintended consequences associated with the shift to unilater no-fault divorce.
First, there is some evidence that custodial mothers and
their children have suffered more following no-fault divorce than similar mothers
and children did before the adoption of no-fault divorce grounds. Second, no-fault
divorce appears to have contributed to a dramatic increase in the rate of divorce
in the United States.
a. Personal Consequences. Divorce is an economic disaster for most families. The economic security of individuals and society are inextricably linked to the stability and continuity of families. The family is a remarkably efficient economic unit. When that unit is broken and two economic units must subsist instead of one, the overall costs increase. Thus, it should come as no surprise to discover that divorce creates economic distress for most of the individuals affected. In the overwhelming majority of cases divorce impoverishes women and children, and often creates economic hardship for men as well. See Weitzman, infra.
Of course, financial distress is not the only type of personal trauma associated with divorce. Divorce is a traumatic event for individuals and a major cause of psycho-social disruption. One writer summarized some of the detrimental consequences of divorce that are identified in professional literature.
There is now an enormous body of professional literature testifying
to the fact that marital disruption is a causal factor connected with a wide
variety of personal and social ills. . .
Of all the social variables whose relationships with the distribution of psychopathology in the population have been studied, none has been more consistently and powerfully associated with [mental disorders] than marital status." Marital disruption can precipitate intense and complicated emotional responses.
Heatherington . . . found that divorced parents felt more anxious,
depressed, angry, rejected, and incompetent that married persons. Divorced men
and women both experienced changes in self-concept . . . Fathers felt a lack
of identity, rootlessness, and complained of a lack of structure in their lives
. . . Divorced women complained of feeling unattractive, helpless, and of having
lost their identity as married women.
The rate of admission to mental institutions for inpatient treatment
has been shown to be from seven to twenty-two times higher for divorced and
separated men than for married men, and from three to eight times higher for
divorced or separated women than married women. Likewise, the rates of admission
for outpatient mental health treatment are significantly higher for divorced
and separated persons than for married persons.
The relationship between stress and physical health has long been
known. There is growing evidence that the trauma and anxiety of divorce and
separation are among the most stressful and difficult-to-cope-with human experiences.
A seminal study, published in 1968, reported that of all major life events,
divorce and separation were decisively ranked among the most stressful and difficult
to cope with (rating 73 and 65, respectively, on a 100-point scale), consistently
surpassing in intensity and difficulty almost all other life crises including
such major catastrophes as going to jail (rated 63), losing a job (rated 47),
personal injury or illness (rated 51), and mortgage foreclosure (rated 30).
In fact, only the death of a spouse (rated 100) was found to be more stressful.
. . .
Thus, it is no surprise that divorced and separated persons have
more health problems than married individuals. For instance, although married
persons suffer slightly more chronic diseases than divorced, widowed, and single
persons, they "have significantly fewer chronic conditions (50% fewer)
which limit their activities. . . . Although a higher percentage of married
than unmarried persons have hospital insurance, "the typical single, widowed,
or divorced individual remains far longer in the hospital for the identical
medical problems than do married people. . . . The overall death rate for white
persons and the death rate for coronary heart diseases for all persons are significantly
higher for divorced individuals than single, widowed, or married persons. The
divorced and separated also have a higher incidence of high blood pressure,
alcoholism, automobile accidents, and suicide than married persons. One study
concluded that it usually takes from two to four years for divorced persons
to recover from the emotional distress of divorce.
The economic consequences of divorce are overwhelmingly negative as well. Divorce is an economic disaster for most women and children. Lenore Weitzman concluded from her exhaustive California study that divorce results in the "impoverishment" of women and children. "Men experienced a 42 percent improvement in their post-divorce standard of living while women experienced a 73 percent loss." The average amount of child support awarded in California was found to be less than the amount given to needy families under the Aid to Families with Dependent Children program. In fact, the average amount of child support reported that of the 3,400,000 American families that were headed by women in 1970, just 38% of these families had incomes over $5,000, and 9% had incomes over $10,000. On the other hand, 55% of the intact families had incomes of over $20,000. A relationship between income drop after divorce and the maladjustment of children has recently been observed.
Lynn D. Wardle, Rethinking Marital Age Restrictions, 22 J. Fam. L. 1, 30-34 (1983).
More recent research by Prof. Linda Waite at the University of Chicago indicates a woman who is aged 48 and married will have an 87% chance of living to age 65, but a divorced woman, only a 67% chance to do so. There is the same 20 point differential for men: 83% of married men will live to age 65, but only 63% of divorced men.
Correcting Dr. Weitzman's statistics. Dr. Lenore Weitzman studied the economic effects of divorce under the California no-fault divorce laws. She suggested that the move to no-fault laws increased the impoverishment of women in divorce by depriving them of a bargaining tool to get more settlement from their husbands. She reported that, on average, men were 42 percent better off, and women were 73 percent worse off a year after divorce than they had been during the marriage. Dr. Wetizman's findings won her a lot of praise and ignited a firestorm of concern about the "feminization of poverty." Lenore Weitzman, Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America (19**).
However, when her studies were reexamined and replicated, two things became very clear. First, Weitxman's generalization about no-fault divorce having at least a temporary detrimental effect upon the economic welfare of women and at least a temporary positive effect upon the economic welfare of men is undeniably correct. Second, the amount of that effect is significantly smaller than she calculated. Another scholar reanalyzed Dr. Weitzman's own source data and found mathematical errors; he found that divorced women suffered a 27% decline in the standard of living post-divorce (about 1/3 of what Dr. Weitzman had miscalculated), while men enjoyed a 10% increase in their standard of living (about of 1/4 what Dr. Weitzman had calculated).Richard R. Peterson, A Re-Evaluation of the Economic Consequences of Divorce in 61 Amer. Sociolog. Rev. 528, 535 (1996). Dr. Weitzman has acknowledged the calculation error (it was due in part to computer program problems).Lenore J. Weitzman, The Economic Consequences of Divorce are Still Unequal: Comment on Peterson in 61 Amer. Sociolog. Rev. 537, 538 (1996).
A more recent study found that single women in America experienced a 12% decline in their standard of living after divorce. Matthey McKeever & Nicholas Wolfinger, Reexamining the Economic Costs of Marital Disruption for Women paper presented July 15, 1997 at the annual meeting of the American Sociological Association, cited in Donald S. Moir, A New Class of Disadvantaged Children: Reflections on "Easy" Divorce in Family Affairs __ (C. D. Howe Instutute 1998) (draft at 11 n. 34).
In Canada, the government reported in 1997 that women experienced
a 23% decline in standard of living after divorce while men experienced a 10%
improvement in living standard. Statistics Canada, 1997, Family Income After
Separation, Cat. 13-588 MPB at 7-8, 10-11, cited in Donald S. Moir, A New Class
of Disadvantaged Children: Reflections on "Easy" Divorce in Family
Affairs __ (C. D. Howe Instutute 1998) (draft at 11). Another study reported
an initial average drop in Canadian women's living standard after divorce of
23%, but after five years, that was reduced to only a 5% compared to pre-divorce.
Martin Dooley, Lone Mother Families and Social Assistance Policy in Canada in
Family Matters: New Policies for Divorce, Lone Mothers and Child Policy at 48-49
(C. D. Howe Institute, 1995) cited in Moir, supra note __.
b. The Social Consequences of Divorce. Divorce constitutes a major social burden as well as a widespread pattern of individual tragedy. The reduced productivity, increased poverty, heightened medical expenses, and lost educational resources directly affect the economic well being of the nation.
Obviously, this personal trauma translates in many respects into significant social burdens. One study of demographic variables found that "disrupted families" correlates more significantly than any other identified variables with a multitude of social problems, including venereal disease rates, rates of referral and treatment of mental retardation and mental illness, infant death rates, and arrest rates.
The rate of imprisonment in correctional institutions for divorced
men is fifteen times higher than it is for married men; it is five times higher
for divorced women than it is for married women. The incidence of antisocial
behavior--juvenile delinquency and criminal act--is significantly higher for
persons in divorced and separated families than it is for persons living in
A disproportionate number of divorced families depend upon public welfare. One recent study revealed that approximately 40% of all families headed by a previously-married female had income below the federally-defined poverty level; 24% of such families were receiving public assistance, and 34% of such families with children were receiving public assistance. The lost productivity attributable to the higher rate of disabilities and longer hospital stays of divorced persons also affects the economic health of the country. Moreover, the direct burdens and costs of divorce for the judicial system, which must devote enormous time and resources to resolving divorce-related disputes, are substantial.
It has been estimated that more than one-half of all civil filings
in state courts are family law matters. The tremendous expenditure of public
funds for divorce court administration affects all taxpayers as well as other
litigants. Wardle, Rethinking at 34-35.
The severity of the problem of the instability of marriage in the United States and the gravity of the potential consequences of that phenomenon should not be underestimated. Never before has any society sustained such a high rate of divorce for as long a time as has been sustained for more than twenty-five years in the United States of America. A very sobering study by William J. Goode suggests that the social forces that have combined to generate and support the current unprecedented rate of marital instability, are extremely powerful and socially very (self-) destructive. "[T]he current trend toward a lesser investment of people in the collectivity of the family cannot continue indefinitely; because if the family as a social agency fails to function reasonably well, the economy -- and the society as a whole -- cannot do so either." William J. Goode, World Changes in Divorce Patterns 336 (1993). He emphasizes "the magnitude of the social problems created by large increases in marital dissolutions and the weakening of a commitment to family obligations." Goode at 320-321. We cannot separate divorce from its social consequences or reverse the trends in social consequences without changing the social condition; it is not impossible to change those social forces but it is extremely difficult, and such phenomena do not flatten out voluntarily but usually it takes some major external force to produce the change.
Goode writes: "I know of no great civilization that at the
height of its power and material splendor ever changed its grand onward movement
[is social forces causing social destabilization], except by dissolution and
military defeat." Goode at 318. "To change all these forces is [very
difficult]. It is not impossible, but no civilization has ever moved in that
direction voluntarily." Id. at 335.
Most divorces occur among middle-class families. And the middle
class climate of confidence is extremely important to democratic societies.
"People without confidence in a secure tomorrow have no reason to plan
or save, invest or organize, vote or obey the more irksome strictures of law.
And divorced kids have less confidence than others in social institutions. The
one most sacred and precious to them has failed, and this can't help but have
an impact on their relationships with other community instituitons. If the implied
parental promise 'I will always be here to help you, comfort you, support you
. . .' can't be trusted, why should these kids believe journalists, teachers,
politicians, clergymen? "We're fast approaching the time when half our
society will comprise grown-up divorced kds. We need to think about the consequences
of that for us all, because people who expect too little aren't much good at
contributing, either. Realism and scepticism . . . can be blunted bya false
notion that disappointment is the necessary end of every human endeavor. And
apathy, a disease which many of our children have caught, can kill the body
Warner Troyer, Divorced Kids 174-175, (Harcourt Brace Javonovich 1979).
c. Do No-Fault Divorce Laws Breed Divorce? The following except the  is taken from Lynn d. Wardle, No-Fault Divorce and the Divorce Conundrum at __:
The conventional wisdom is that adoption of no-fault grounds for divorce have not caused divorce rates to increase. Professor Jacob noted that "[e] very study of the impact of these [no-fault] laws on divorce rates has concluded that no relationship existed between the introduction of no-fault and the rise in divorce." [For decades defenders of no-fault divorce have denied that liberal divorce laws cause any increase in divorce. And it has been established "that divorce rates began increasing about eight years before no-fault laws were passed, and that increases in divorce rates were similar for states with and without no-fault statutes . . . ." Dixon & Weitzman, Evaluating the Impact of No-Fault Divorce in California, 29 Fam Relations 297 (1980); Mazur-Hart & Berman, Changing from Fault to No-Fault Divorce: An Interrupted Time Series Analysis, 7 J. Applied Soc. Psycho. 300 (1977); Schoen, Breenblatt, & Meilke, California's Experience with Nonadversary Divorce, 12 Demography 223 (1975); Sell, Divorce Law Reform and Increasing Divorce Rates in Current Issues in Marriage and the Family (J. Wells ed. 1979); and Wright & Stetson,
The Impact of No-Fault Divorce Law and Reform on Divorce in American
States, 40 J. Marr. & Fam. 575 (1978)). However] Professor Marvell's recent,
comprehensive study of the relationship between the adoption of no-fault divorce
laws and divorce rates cites ten previous studies, most of which seemed to offer
"overwhelming evidence" that there was no causal correlation. The
main evidence for this conclusion was simple: the divorce rate began to rise
in most states before no-fault divorce laws were actually enacted in those states.
However, the early studies have been faulted recently for flaws in data used, research design, oversimplicity, and other technical problems.
Moreover, even some of the early studies reported a positive correlation between the adoption of no-fault divorce grounds and increases in divorce rates in at least some states. Professor Marvell's rigorous and comprehensive statistical research now has demonstrated a significant causal relationship between adoption of no-fault divorce in individual states and the increase of divorce rates in most states. Of the thirty-five states examined with new no-fault divorce laws effective before 1980, twenty-five experienced higher than average increases in divorce rates when the no-fault laws went into effect, and in eleven states, the increase in the rate of divorce was more than twice the previous rate of increase. Professor
Marvell concluded that "[n]o-fault laws, operationalized
as a single variable, had a significant impact on divorce rates, with the major
thrust delayed for a year."
Moreover, it is apparent that the significant rise in the divorce rate in the United States did not begin until the no-fault divorce reform movement was well-underway. Thus, until the mid-1960's, the divorce rate had been remarkably stable for twenty years, and before the World War II-era rise in divorce rates, the rates had been stable for many more years. The no-fault divorce reform movement was well underway by the time the divorce rates for the United States began their significant climb in 1967, from 2.5 divorces per 1000 people (1966) to 5.3 (1979 and 1981). [B]efore modern no-fault divorce reforms were accepted, the divorce rates had been slowly rising for a long time; during the years that the legislatures in the American states were adopting no-fault divorce laws, the divorce rates rose abruptly and significantly; and since the no-fault divorce reform movement peaked (leaving virtually every state with some form of no- fault divorce), the divorce rates appear to have stabilized again--at a significantly higher rate of divorce than has ever been recorded, much less maintained, in the history of the United States. The United States now has the highest rate of divorce of any western nation, and some analysts have estimated that as many as one-half of all marriages entered into in these days will end in divorce.
In light of these society-wide trends, it begs the question to
argue that because the legislature in a particular state was slower to accept
no-fault divorce than legislatures in sister states, the adoption of no-fault
divorce laws elsewhere did not contribute to the increase in divorce rates inside
In a recent study using a quasi-experimental pre-post intervention design and archival data from the National Center for Health Statistics, researchers at the University of Oklahoma examined the effect adoption of no-fault divorce law had on the divorce rate across the 50 states. Education and income data from the U.S. Bureau of the Census and religiosity data from the Glenmary Research Center were used to assess the role of education, median family income and religiosity under the no-fault divorce regime. The researchers found that no-fault divorce laws had a significant positive effect on the divorce rate across the 50 states.
Among the other variables median family income was the only significant
predictor of the change in divorce rate; the adjusted no-fault divorce rate
increased as median family income increased. Paul A. Nakonezny, Robert D. Shull,
Joseph Lee Rodgers. "The Effect of No-Fault Divorce Law on the Divorce
Rate Across the 50 States and Its Relation to Income, Education, and Religiosity."
_Journal of Marriage and the Family_ (May 1995): 477-488 (noted in http://www.divorcereform.org/stats.html
(Divorce/Marriage Statistics). ]
Of course, it is impossible to determine precisely how much no-fault
divorce laws have contributed to the increased divorce rates. Many social forces
have apparently contributed to this "boom" in divorce. However, the
best evidence indicates that in at least some states the adoption of no-fault
divorce was a significant factor in increasing divorce rates. Moreover, it seems
plausible that no-fault divorce laws in conjunction with other social factors
have made divorce an easier and more frequently invoked solution to marital
problems than reformers intended.
[Both the rise in divorce rates and the laws come from the same source, changing values and norms in the larger society, alterations in economic opportunities, political ideologies, even the models presented by the mass media." And as people will try to get divorced, they also will try to liberalize the grounds for divorce, so both developments occur proximately. Goode at 322. "The law does have an impact at the margins. Thus those who are not totally determined to divorce [and the poor] are influenced by restrictive laws and administrative hurdles . . . ." Goode at 323.
Thus, thirty years ago Professor Max Rheinstein noted that a study
by a University of Chicago graduate student found that a comparatively high
incidence of divorce and breakdown was associated with more liberal divorce
laws. However, increased divorce and breakdown were also associated with other
factors including industrialization, economic position of women, religion, urbanization,
and the degree of comparative "settledness" or "restlessness"
in the area. Max Rheinstein, Marriage Stability, Divorce and the Law 306 (1972).
d. The New Divorce Reform Movement. The following except  is taken from Lynn D. Wardle, Divorce Reform at the Turn of the Millennium: Certainties and Possibilities, __ Fam. L. Q. ___ (2000, in press).
There are growing indications that most people in America are very dissatisfied with the current regime of unilateral no-fault divorce laws. [For example, there] is "widespread dissatisfaction with the current social and legal landscape of marriage and divorce, and a sense that marriage itself is threatened under no-fault divorce."
Survey after survey of public opinion reports that Americans believe that divorce is too easy, especially divorce of couples with children. For example, Washington Post/Kaiser/Harvard Survey Project American Values: 1998 National Survey of Americans on Values asked whether divorce should be easier, harder or same as it is; respondents saying that divorce should be harder outnumbered those thinking it should be easier nearly three-to-one, and outnumbered those thinking it should be the same or easier nearly two-to-one -- the highest percentage to say they thought divorce is too easy since the pollsters began charting responses to that question 30 years earlier, in 1968.
The same survey also reported that 50% of those surveyed believe that divorce is "not acceptable" when the couple has children (compared to 46% who believe that divorce is acceptable then). While seventy-six percent of those polled agree in principle that divorce is acceptable at least sometimes, eighty percent of the respondents indicated that it was not acceptable at least sometimes.
A Time/CNN survey May 7-8, 1999, by Yankelovich Partners Inc also reported that fifty percent of those surveyed agreed that "it should be harder than it is not for married couples to get a divorce," while 61% agreed that it should "be harder than it now is for couples with young children to get a divorce," and 64% agreed that people "should be required to take a marriage-education course before they can get a marriage license."
Another survey, in 1995, reported by Family Research Council,
revealed that thirty-one to fifty-five percent of Americans surveyed favored
"divorce reform to strengthen the rights of spouses who want to save the
marriage." "Reducing the divorce rate has become a priority in America."
The growing public sentiment to do something about the excesses
and abuses of unilateral no-fault divorce is beginning to be recognized in many
state legislatures. Some commentators refer to the introduction of a bill to
replace unilateral no-fault with marital-behavior-based grounds for divorce
in the Michigan legislature by Representative Jessie Dalman on Valentines Day,
1996, as the beginning of the "divorce counter-revolution." In three
years, bills to [revive] marital-misconduct divorce standards were introduced
in at least ten states.
The first legislative reform of the fundamental terms of no-fault
divorce was enacted in 1997 by Louisiana. The covenant marriage law enacted
by the Louisiana legislature provides that parties may choose to enter a "covenant
marriage" by executing a declaration of an intent to contract a covenant
marriage and certifying by affidavit that they have undergone premarital counseling
regarding the seriousness and nature of covenant marriage and acknowledge that
divorce will only be possible where there has been a complete and total breach
of the marital covenant. They must attest that full disclosure has been made
before marriage of "everything which could adversely affect the decision
to enter" covenant marriage. By entering a covenant marriage they commit
to take "all reasonable efforts to preserve our marriage, including marital
counseling," and commit to remain married "for the rest of our lives."
They may file this declaration of intent to contract covenant marriage at the
time they apply for a marriage license; previously-married couples may file
a declaration to designate their existing marriage as a covenant marriage by
filing a separate declaration and affidavit.
The most controversial difference between covenant marriage and ordinary marriage in Louisiana is that in covenant marriage grounds for divorce are restricted. While ordinary marriages can be terminated by proof of having lived apart for six months (or upon the historical grounds of adultery or conviction for a felony resulting in death or hard labor), covenant marriage cannot be terminated upon six months separation. Rather, covenant marriage may be dissolved only on six grounds: the other spouse has committed adultery, committed a felony resulting in a sentence of death or hard labor, abandoned the matrimonial domicile for one year, has physically or sexually abused the spouse or child of the spouse seeking the divorce, or the spouses have lived separate and apart for two years without reconciliation, or one year following a legal separation--(but if there are minor children legal separation must be at least 18 months unless child abuse was the basis for the legal separation).
Legal separation is possible on the first five grounds above mentioned
or because of the other spouse's habitual intemperance, cruel treatment, or
outrages that are "of such a nature as to render their living together
insupportable." Actions for legal separation in a covenant marriage are
limited by procedures strictly narrowing jurisdiction, strictly limiting venue,
and prohibiting summary judgment or judgment on the pleadings.
A year after Louisiana enacted its landmark covenant marriage act, Arizona passed the nation's second covenant marriage law. Since the prior Arizona divorce law provided clearly and exclusively for modern-clean-no-fault divorce, while the prior Louisiana law was only de facto no fault, allowing divorce only after six months living apart, or for more traditional grounds, the adoption on covenant marriage in Arizona represented a rather significant, if little-recognized, extension of the divorce reform movement.
The Arizona law has been called a "watered down version of
the Louisiana law," because if both parties to the marriage agree to end
the marriage, they may do so without either establishing fault or without living
apart for a period of time. Critics of the Arizona covenant marriage amendments
have charged that by permitting the spouses to end their covenant marriage by
mutual agreement practically negates the purpose behind a covenant marriage,
and that vulnerable parties might be coerced into agreeing to the dissolution
of the marriage.
*** Bills proposing"covenant marriage" laws were introduced
in sixteen other states in 1997 and 1998, and a total of at least twenty state
legislatures (including California's) had considered covenant marriage proposals
by 1999. That year, "covenant marriage" bills passed at least one
house in at least three additional states. By 1999, "[p]roposals to reform
no-fault divorce laws ha[d] been introduced in a majority of states . . . ."
In 1998 another dimension of the "shifting paradigm"
driving the divorce reform movement was manifest when Florida passed a "Marriage
Preservation and Preparation Act" requiring all high school students in
the state to be given instruction in "marriage and relationship skills
education," offering a reduction in the price of marriage licenses and
waiver of the three-day waiting perioid to couples who undergo at least four
hours of training in a "premarital preparation course," and requiring
couples who file for divorce to attend a "Parent Education and Family Stabilization
Course" addressing the legal and emotional impact of divorce on adults
and children, financial responsibility, laws on child abuse or neglect and conflict
At least six different types of divorce reforms have been proposed
to reduce the high rate of marital breakup. These include proposals to 1) replace
no-fault grounds with marital-misconduct-based divorce laws; 2) require pre-marital
and/or pre-divorce counseling; 3) make fault a more substantial consideration
in all economic aspects of divorce; 4) legalize privately contract (precommitment)
penalties and rewards to promote marriage-maintaining behavior; 5) give couples
the option to choose a more committed form of marriage; or 6) impose additional
divorce procedures or limitations when children are involved. Additionally,
many proposals, including the covenant marriage laws enacted in Louisiana and
Arizona, contain combinations of several of the foregoing proposals.
[T]the grassroots movement to reform divorce laws appears to be "gaining momentum . . . across the nation." The intensity and breadth of the dissatisfaction with the current regime of unilateral no-fault divorce is so great that it has been described as "a 'counter-revolution' . . . against no-fault divorce . . . ." This "widespread disillusionment over no-fault divorce," has not escaped the notice of politicians, who have begun to attempt to capitalize politically upon the groundswell. "[C]ommentators and politicians across the country decry the loss of 'family values' and urge legislative and social reform to bring back the traditional family." Concerns about the disintegration of marriages and the family in general are not just being expressed by conservatives any more; liberals as well as conservatives have praised the aims of covenant marriage; even Hillary Rodham Clinton has "expressed support for the goals of the Louisiana [covenant marriage] law."
*. The conundrum of divorce. The following excerpt is from Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 B.Y.U. L. Rev. 79, 124-136.
[Drafters of divorce laws encounter three dilemmas that constitute what has been called "the divorce conundrum."] The first dilemma of the divorce conundrum arises from the need to balance two different policy goals: to alleviate the dislocation and suffering caused by marital failure by making the divorce process easier, and to promote marital stability and prevent or repair marital disruption. Divorce laws affect not only people who get divorced; they also affect marriages.
Divorce laws affect the nature, expectations and success of marriages
as surely as laws governing breach of contract affect the nature, success and
performance of contracts. In establishing a divorce law, wise lawmakers must
be concerned not only with the effect of the law upon divorcing parties and
their children, but also with the impact on ongoing marriages and families in
[Second,] divorce policy also requires consideration of two different notions of fairness: fairness for the divorcing parties and their children, and fairness for spouses in ongoing marriages and their children (especially for families where the marriage may be in difficulty). Fairness for the divorcing parties essentially consists of divisible equality-- i.e., recognizing the equal worth of the contributions of husbands and wives to the marriage and equally dividing their acquisitions. *** [W]hen marriage fails, the principal asset of the marriage that remains--and just about the only aspect of family life with which a court can competently deal--is the material wealth acquired by the parties during the marriage. In an egalitarian society, there is no better model for apportioning such assets than to begin with the premise that the spouses valued equally their own and each others' contributions and to aim for equality in the division of the assets and liabilities of the unsuccessful enterprise.
While the rule of equality is essential to fairness in divorce, a "higher law" governs marriage--the "higher law" of love. The essence of love is sharing and giving, of wanting wholeheartedly to be one (not [have] one-half). Fairness in marriage is expressed and measured in terms of love. Self-sacrifice, sharing, continuous giving, and continual forgiving are indispensable to any happy marriage. Marriage requires a long view--eternal is the word that lovers like to use--a view that looks beyond the dull daily duties and sometimes-difficult periods of family life.
The language of equality is inadequate to describe the essence of marriage. Marriage is better described in language that is poetic and spiritual--the language of love. The language of equality deals with visible, material things, whereas the essence of marriage is invisible. The problem with the language of equality is that it encourages thinking about an intimate, living relationship in terms that do not fairly characterize it until it is dead.
An accounting mentality, so essential to fairness-as-equality, can canker marital relationships that are striving for fairness-as-love. Any marriage built on the premise that each spouse need only give fifty percent of the time, need carry only fifty percent of the burdens, and should expect to receive a full fifty percent of all the benefits may be headed for a successful divorce, not for marital satisfaction. ***
The critical premise of fairness-as-equality is enforceability. By definition, fairness-as-love (i.e., sharing and giving) cannot be enforced. Love must be offered voluntarily. It can never be coerced or taken away.
[Additionally, no-fault divorce laws seem to "cultivate a casual commitment to marriage," to foster "the illusion of easy divorce," and to confuse "a cry for help with a demand for divorce."]
The third dilemma of divorce law results from the tension between the public and private (or privacy) interests in divorce. [That is, by giving absolute priority to the private right of individuals to enter or leave marriage at will, the public interest in the abandonned spouse and in the children of the marriage is shortchanged.]
Finally, there is a difference between an isolated incident and an epidemic. The law, and society, can accommodate some [marital] instability, but when [marital instability] becomes the [norm], that is a different matter. ***
e. Divorce Gap Dropping Among Children of No-Fault Divorce. A study presented to the Annual Meeting of the American Sociological Association in Chicago in August, 1999, suggests that the rate of divorce among the children of divorced parents has fallen. In 1973 the rate of divorce among the children of divorced parents was almost 300 percent higher than that of children of intact families. Today it is about 50 percent higher. Several factors may account for this change: children of divorced parents are less likely to marry than children of non-divorced parents; the divorce rate among children from non-broken households has gone up; and divorcing parents may be doing a better job of insulating their children from the worst emotional effects of divorce. The study, done by the National Opinion Research Council included 21,963 adults over a 20-year period. The primary author of the study, Nicholas Wolfinger from the University of Utah, made it clear that divorce still has a significant negative effect on the long-term emotional health of children. David L. Adams, Church and State Update, an information service of the Office of Government Information of The Lutheran Church--Missouri Synod (Aug. 13, 1999).
The popular statistic that 50% of all marriages will end in divorce is simply untrue. This myth probably began when the Census Bureau reported that during one year, there were 2.4 million marriages and 1.2 million divorces. Someone did the math without taking into account the roughly 50 million marriages already in existence, and the myth was born. When divorces are tracked by the year in which the couple married, the divorce rate has risen significantly in the last couple of decades, but the overall average rate of divorce is closer to 25%.
f. LDS Perspectives on Divorce
Marriage -- especially temple marriage -- and family ties involve covenant relationships. They cannot be regarded casually. With divorce rates escalating throughout the world today, it is apparent that many spouses are failing to endure to the end of their commitments to each other. And some temple marriages fail because a husband forgets that his highest and most important priesthood duty is to honor and sustain his wife. (See D&C 42:22) The best thing that a father can do for his children is to "love their mother." (This statement has been made by many leaders of the Church. For example, see Howard W. Hunter, "Being a Righteous Husband and Father," Ensign, Nov. 1994, 50; David O. McKay, as quoted by Gordon B. Hinckley, "Reach Out in Love and Kindness," Ensign, Nov. 1982, 77)
--Russell M. Nelson, Ensign, May 1997, 71
Of course, some have no opportunity to marry, and some divorces are unavoidable. But the Lord will ultimately compensate those faithful ones who are denied mortal fulfillment.
-- Bruce C. Hafen, Ensign, November 1996, 26
Another bride sighed blissfully on her wedding day, "Mom, I'm at the end of all my troubles!" "Yes," replied her mother, "but at which end?" When troubles come, the parties to a contractual marriage seek happiness by walking away. They marry to obtain benefits and will stay only as long as they're receiving what they bargained for. But when troubles come to a covenant marriage, the husband and wife work them through. They marry to give and to grow, bound by covenants to each other, to the community, and to God. Contract companions each give 50 percent; covenant companions each give 100 percent. (See Bruce C. and Marie K. Haven, The Belonging Heart (1994), 255-65; Pitirim Sorokin, Society, Culture and Personality, 2nd ed. (1962), 99-107)
Of course, some have no opportunity to marry. And some divorces
are unavoidable. But the Lord will ultimately compensate those faithful ones
who are denied mortal fulfillment.
-- Bruce C. Hafen, Ensign, November 1996, 26
What then, might be "just cause" for breaking the covenants
of marriage?. . .only parties can determine. . . nothing less serious than a
prolonged and apparently irredeemable relationship which is destructive of a
person's dignity as a human being; NOT mental distress, personality differences,
having grown apart or falling out of love, especially when there are children.
-- James E. Faust, Ensign, May 1993, 35-37
The complaint of a husband, after eighteen years of marriage and
five children, that he no longer loves his wife is, in my judgment, a feeble
excuse for the violation of covenants made before God and also the evasion of
the responsibilities that are the very strength of the society of which we are
-- Gordon B. Hinckley, Ensign, November 1993, 68
I find selfishness to be the cause of it (divorce). I am satisfied that a happy marriage is not so much a matter of romance as it is an anxious concern for the comfort and well-being of one's companion. Too many who come to marriage have been coddled and spoiled and somehow led to feel that everything must be precisely right at all times, that life is a series of entertainments, that appetites are to be satisfied without regard to principle. How tragic the consequences of such hollow and unreasonable thinking!
-- Gordon B. Hinckley, Ensign, May 1991, 93
Divorce-Last year there was almost one divorce for every two marriages, and last year there were twice as many divorces as in 1966 and there were probably more than a million children under eighteen involved in these family breakups, for whom the emotional and other adverse consequences may have been even more serious than for the adults themselves. We have the lingering, ominous suspicion that the proponents of many programs pay little attention, if any, to the sanctity of the home and family. . . when the home is destroyed, the nation goes to pieces. There can be no question about this, and all historians or those who have followed a historical line of thought have come to the same conclusion.
-- Spencer W. Kimball, Ensign, May 1978, 4-9
Divorce almost invariably deprives children of these advantages. The increasing divorce rate in the United States today is a threatening menace to this nation's greatness. The increase throughout the United States, and in our own state, in the percentage of divorces is alarming.
In the light of scripture, ancient and modern, we are justified
in concluding that Christ's ideal pertaining to marriage is the unbroken home,
and conditions that cause divorce are violations of his divine teachings. Except
in cases of infidelity or other extreme conditions, the Church frowns upon divorce,
and authorities look with apprehension upon the increasing number of divorces
among members of the Church.
*** Even though a loose interpretation of the law of the land
would grant such a man a bill of divorcement, I think he is unworthy of a recommend
to have his second marriage solemnized in the temple.
-- David O. McKay, Ensign, May 1969, 4-10
"If a man and woman should be joined together who are incompatible
to each other it would be a mercy to them to be separated that they might have
a chance to find other spirits that will be congenial to them. We may bind on
earth and it will be bound in Heaven, and loose on earth and it will be loosed
in Heaven." Pres. Joseph F. Smith, Address Sunday Morning, Box Elder News,
Jan. 28, 1915 in James R. Clark, Messages of the First Presidency, Vol.4, p.330
- p.331 (19??).
B. Domestic Violence
a. The Reality of Domestic Violence. Physical violence by spouses towards each other, most dangerously by the husband toward the wife, regretably, is not an uncommon part of divorce. Physically abusive behavior sometimes is a principal cause for the breakup of the marriage. Fear of further assault may be a reason why a dependent wife has not previously sought divorce.
A study based on the National Family Violence Survey reported that some domestic partner violence (including married and unmarried couples) occured in about 16% of families surveyed that year. However, a study based on the National Crime Survey reported that the rate of criminal violence in families was less than 3% per year. The authors explained that the difference was probably due to the fact that the "NCS is presented to respondents as a study of crime, whereas the others are presented as studies of family problems. The difficulty with a 'crime survey' . . . is that most people thinkn of being kicked by their spouses as a wrong, but not a 'crime' in the legal sense." Straus and Gelles, How Violent Are American Families: Estimates from the National Family Violence Resurvey and Other Studies in Family Abuse and Its Consequences: New Directions in Research 20 (Hotaling, et al, eds. 1988). Another social scientist has written: "Substantial discrepancies among estimates of the prevalience, incidence, and correlates of family violence compromise the usefulness of the research results." Joseph G. Weis, Family Violence Research Methodology and Design in Family Violence 117 (Lloyd Ohlin & Michael Tonry eds. 1989). Nonetheless, it is clear that domestic violence is a serious problem.
The causes of abuse are many. "[One study] found that, of the forty-two characteristics or "risk markers" studied in female victims, only one -- having witnessed violence between parents or care givers in childhood -- was consistently correlated with being the victim of a male partner's violence. . . . Conversely, for husband who were violent toward their femaile partners three risk markers -- witnessing of parental violence while growing up, sexual aggression toward the wife, and use of violence toward the children were consistently found. Alcohol use, income level, occupational status, education level, and assertiveness were also consistent risk markers, althoug less strong." Iren Hanson, Frieze & Angela Browne, Violence in Marriage in Family Violence, supra, at 181.
The gender of assaulters is a subject of much dispute. According to a 1985 National Family Violence Survey, women commit slightly more minor assaults than men on their partners and men are slightly more guilty of severe assaults on their partners than women. Straus, Physical Assaults by Women Partners: A Major Social Problem, in Women, Men & Gender: Ongoing Debates at 210 (M.R. Walsh ec., 1997). On the other hand, it appears that men commit criminal assaults (that is serious enough to be reported to police) nearly ten times more often than women.
In the summer of 1999, an extensive government study added fuel to the controversy.
A government-sponsored study finds, in part, that women assault men at least as often as men hit women.
The findings are sure to fuel one of the touchiest debates in the field of domestic violence: who hits whom and why.
About 27 percent of women and 34 percent of men in the 21-year study reported they had been physically abused by a partner. About 37 percent of women and 22 percent of men said they had perpetrated the violence.
When partners were interviewed, 70 percent to 80 percent agreed that physical violence took place and agreed on the extent of the abuse, the report says.
The study was co-authored by psychology professor Terrie Moffitt of the University of Wisconsin-Madison. The U.S. Justice Department, which released her report Tuesday, sponsored the analysis of her data. The research was done with 1,037 young New Zealand adults, 52 percent male and 48 percent female.
Moffitt's study did not include "who started each incident or if some of the acts were in self-defense, but it is clear that in most cases of partner violence . . . , the parties are involved in mutual violence."
Although the research was done in New Zealand, it will take its place among major, seemingly dueling studies with different findings.
Richard Gelles, co-author of two other government studies on domestic violence, says the New Zealand research is solid: His findings are similar.
"Both our studies found the same level of self-reports of hitting by women and men," said Gelles, now with the Penn School of Social Work at the University of Pennsylvania. "The domestic-violence movement has emphatically tried to ignore the fact women hit men."
Gelles' findings run counter to another government-funded study, which found in 1997 that women are three times more likely to be assaulted in some way by a male partner and 17 times more likely to be badly beaten over a lifetime than men are by women.
The experts do agree that men are much more apt to injure women than the other way around. "This is not an even playing field," Gelles said.
Sue Osthoff of the National Clearinghouse for the Defense of Battered Women says studies about abuse are very dicey. "Women tend to take more responsibility for their actions," reporting more of their abuse than men do, she said.
Studies often "don't get the full context of the abuse," including whether the partner's hitting is in self-defense -- often the case with women.
Study Spotlights Abuse Of Males by Females, USA Today in S.L. Tribune, July 14, 1999 <http://www.sltrib.com/07141999/nation_w/8047.htm> (searched 14 July 99)
b. Modern Spouse Abuse Statutes. Statutory provisions designed to provide some protection for victims of spouse abuse exist in all states. Most were enacted (or were substantially revised) relatively recently, basically since the women's rights revolution of the Burger era. Virtually all American jurisdictions now have enacted legislation to protect battered women, and most of the laws had been enacted since 1976. See generally Lerman, infra.
To date no "uniform" law on spousal abuse has been drafted. However, section 304 of the Uniform Marriage and Divorce Act, 9A Uniform Laws Annotated 91, 128-130 (1979) specifically provides that as a part of an order for temporary maintenance or support, or as an independent order, the court may enjoin any person from, inter alia, molesting or distubring the peace of any party, exclude any party from the family home or from the home of another person, or other similar relief.
Virtually all states have civil laws providing for injunction-like protective orders to issue to protect abused spouses. Lerman, infra, at 272. While the terms and provisions vary substantially from state to state, there are several common aspects to them. First, standing is typically clarified; usually only the victim of spouse abuse has standing to bring a spouse abuse action to enjoin the perpetrator for molesting or distrubing the victim, or entering her residence. Second, the statutes typically provide that some accessible public official (such as the county clerk) must assist complainants in drafting and filing their pleadings seeking relief from spouse abuse. Third, the statutes typically require the court to hear the complaint within a very short time. Fourth, the statutes typically authorize the court to enter a temporary restraining order ex parte. Fifth, the statutes often provide for police notification of the entry of such orders or other procedures to coordinate law enforcement services which may be necessary to effectuate the order. Sixth, the statutes often refer to or contain provisions for support social services. See e.g., Utah Code Ann. § 30-6-1 et seq (1954); see generally Lerman, infra, at 271-73.
In addition to specific Acts designed to provide civil relief to victims of spouse abuse, general civil remedies and procedures could be employed by competent and creative counsel to obtain adequate civil protection for client victims of spouse abuse where specific spouse abuse provisions are inadequate. For instance, ordinary civil actions seeking injunctive relief against further illegal acts causing irreparable injury are possible in all jurisdictions. Temporary restraining orders are available ex parte in such actions. The ancient remedy of a bill of peace (or its statutory counterpart) might provide an effective remedy (a bond to keep the peace). Moreover, in most states statutes authorize courts to exercise broad equitable powers in connection with divorce, annulment, or separation actions.
c. Criminal Protection Against Domestic Violence. Criminal provisions exist in all states whereby a victim of spouse abuse might obtain protection. During the past decade most states have enacted criminal statutes directly specifically at the problem of spouse abuse. Lerman, infra, at 273; Waits, infra, at ___. These acts often describe specific procedures which law enforcement officers must follow when responding to domestic violence incidents, such as advising the victim of her right to seek injunctive relief, restraining or arresting the perpetrator, transporting the victim to a shelter or hospital, filing written reports of the incident, etc. See e.g., Utah Code Ann. § 77-36-1 et seq (Supp. 1983).
Additionally, general criminal provisions concerning assault, mayhem, trespass, criminal mischief, disturbing the peace, etc. could be applied directly to the perpetrator of spouse abuse. However, traditionally law enforcement officers have been reluctant to interfere in domestic quarrels because the complainants subsequently withdraw their complaints, because fault in the quarrel is difficult to assess and victims often forgive their attacker and refuse to prosecute, because officers often become the victims of sudden violence when intervening in family disputes, and because of excessive cultural tolerance for domestic violence. See generally Bruno v. Codd, 47 N.Y.2d 582, 419 N.Y.S.2d 901, 393 N.E.2d 976 (1979)(upholding dismissal of class action by twelve abused wifes against probation department and family courts [police department also named defendant but entered consent judgment] alleging refusal to enforce laws and provide legal services to protect battered wives, but thoroghly discussing the problem). See further Nearing v. Weaver, 295 Or. 702, 670 P.2d 137 (1983)(police officers who fail to arrest perpetrator of spouse abuse may be liable in tort to victims).
2. Cases and Statutes
a. Utah Statutes.
Utah has adopted a "Cohabitant Abuse Procedures Act, Utah Code Ann. § 77-36-1 to -10.
Utah also has adopted a "Cohabitant Abuse Act" Utah Code Ann. § 30-6-1 to -14.
c. Ida U. STOKER v. Karl S. STOKER
616 P.2d 590 (Utah 1980)
Before us is a judgment of the District Court granting summary judgment in favor of the defendant. Plaintiff's action is for personal injuries alleged to have been intentionally inflicted, and to have been suffered at the hands of defendant, prior to the divorce of the parties.
The only issue presented is whether the doctrine of Interspousal Tort Immunity prevents the trial of this action. We hold, that it does not. The judgment is reversed, and the matter remanded for trial. Costs to appellant. All statutory references are to Utah Code Annotated 1953, unless otherwise indicated.
In Taylor v. Patten,this Court held, under our statutes a wife may recover from her husband for intentionally inflicted injuries. However, in the later case of Rubalcava v. Gisseman, and the Union Pacific Railroad,this court held the statutes considered in Taylor v. Patten did not compel the conclusion tort actions should also be included in the abrogation of immunity, with actions on contracts and property matters. We do not agree.
Prior to the adoption of the Married Women's Acts the common law as it related to the disabilities of married women was, as we find it, in Commentaries on the Laws of England, by Sir William Blackstone.In the cited volume at page 290, we find the foundation stone of interspousal immunity:
"III. Having thus shewn how marriages may be made or dissolved, I come now, lastly, to speak of the legal consequences of such making, or dissolution.
"By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-french a feme-covert, foemina viro co-operta ; is said to be covert- baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. . . ."
In the foregoing we find the disability of coverture arising, because of the unity of husband and wife. Upon marriage the husband and wife became one, thus she could not sue that entity of which she was a part.
This condition is evidenced by other disabilities of coverture as set out in Cooley.
"If the wife be injured in her person or her property, she can bring no action for redress without her husband's concurrence, and in his name, as well as her own: neither can she be sued, without making the husband a defendant. . . ."
The pertinent part of Utah's Married Women's Act as found in 30-2-4, is:
". . . and may prosecute and defend all actions for the preservation and protection of her rights and property as if unmarried. There shall be no right of recovery by the husband on account of personal injury or wrong to his wife, or for expenses connected therewith, but the wife may recover against a third person for such injury or wrong as if unmarried, and such recovery shall include expenses of medical treatment and other expenses paid or assumed by the husband." (Emphasis supplied)
The statute authorizes her to prosecute and defend all actions for the preservation and protection of her rights and property, as if unmarried. It speaks of rights and of property in the disjunctive, and, all actions for the preservation and protection of her rights would certainly include a right to be free from an intentional tort of her husband.
The pertinent statute has been with us since, at least, 1888, and appeared in the revised statutes of 1898; and without alteration has come down to the present. Lending credence to our interpretation of that statute is the fact it was enacted with full knowledge of Article I, Section 11, Constitution of Utah, which is as follows:
"All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party."
It was also enacted with full knowledge of Article IV, Section 1, of our Constitution, which is as follows:
"The rights of citizens of the State of Utah to vote and hold office shall not be denied or abridged on account of sex. Both male and female citizens of this State shall enjoy equally all civil, political and religious rights and privileges."
Our Married Women's Act, as has been demonstrated, is in derogation of the common law. As such, attending its construction, is 68-3-2:
The rule of the common law that statutes in derogation thereof are to be strictly construed has no application to the statutes of this state. The statutes establish the laws of this state respecting the subjects to which they relate, and their provisions and all proceedings under them are to be liberally construed with a view to effect the objects of the statutes and to promote justice. Whenever there is any variance between the rules of equity and the rules of common law in reference to the same matter the rules of equity shall prevail."
To read into our Married Women's Act, a proscription against a wife suing her husband, would be to construe it so strictly as to add a provision which the legislature did not put there.
The old common law fiction is not consonant with the realities of today. One of the strengths of the common law was its ability to change to meet changed conditions. Here, the Legislature did not wait for the common law to change, it made the change for it; and did so at a time when a great many of Utah's sister states were enacting, or had previously enacted, Married Women's Acts. [FN6] Our holding today reaffirms the Legislative abrogation of Interspousal Immunity. That the trend in our sister states is certainly in consonance with our holding today: See 92 A.L.R.3d 901, at p. 923, et seq.
We reaffirm Taylor v. Patten,and call attention to the caveat, 2 Utah 2d at page 408, 275 P.2d at page 699. The caveat is as follows:
"This does not mean that a husband or wife can recover from the other for any unwanted caress, kiss, or other physical contact as sometimes claimed. The marriage relation is created by the consent of both of the parties; inherently within such relationship is the consent of both parties to physical contacts with the other, personal dealings and ways of living which would be unpermitted and in some cases unlawful as between other persons. The essential objects and purposes of marriage such as living together, creating a home and rearing a family are expected and consented to by husband and wife but would be unlawful and in some instances even criminal as between other persons. Under some circumstances such consent might be withdrawn and thereafter would not prevent civil liability occurring, but until that happens the ordinary dealings between husband and wife are with the consent of both and do not create liability between them. However, this does not mean that either husband or wife consents to intentionally inflicted serious personal injuries by the other." (Footnote omitted.)
WILKINS and STEWART, JJ., concur.
CROCKETT, Chief Justice (dissenting).
This decision constitutes an abrupt change in our law which has the potential for far-reaching effects. It is submitted that if there is to be any such diametric change, it should not be by judicial legislation, but by the Legislature, whose prerogative and responsibility it is to fashion and decide upon such policies. At the very least, if there is to be a change by any means, it should have only prospective effect in order to avoid disruptive and unjust impact on contractual obligations and insurance programs which have been entered into based upon the present state of our law.
As explained in that opinion, it is clear beyond doubt that, at common law, neither husband nor wife could sue the other. This arose out of what was anciently considered and continues to be the wise and highly important policy of preserving the solidarity of the family and minimizing antagonisms therein. The passage of time has not changed the vital and important fact that in entering into the marriage contract, the parties exchange vows agreeing to join themselves together in love, loyalty and union with each other, for the purposes of living together as a family unit and of providing for each other's emotional and material needs, including the obligation to support each other. Consequently, whatever of material worth comes to either spouse will benefit the other and the family unit. It follows that, looked at realistically, there cannot be a true adversary proceeding. Whereas, ordinarily, a defendant would be expected to be defensive and resist the claims of a plaintiff, if the latter is his spouse, it would be in the interest of the family unit of which he is a part, for her to prevail.
The evils are not eliminated by the fact that insurance may be involved. In addition to other bad effects, there is the temptation for dishonest collusion with the possible undermining integrity and destroying mutual confidence. And further: the disruptive effects upon existing insurance contracts and programs entered into on the basis of the present law, and the unjust spreading of burdens to other policy holders by necessary increases in insurance premiums.
It is my opinion that one will search in vain in our statutes for any authorization for a wife to sue her husband in a tort claim. ***
Section [30-2-] 6 simply and expressly authorizes both the husband and wife to maintain actions in regard to the property of each in the same manner as if unmarried. Similar to the analysis of the other sections just discussed above, it is significant that this section speaks only of property ; and that it makes no reference to personal injury. Hence, there is no way in which this section could be deemed to authorize a wife to bring such a cause of action against her husband.
To be considered in reference to the statutes just discussed is the universally recognized rule of statutory construction: "expressio unius est exclusio alterius." If the Legislature had intended to create a cause of action, or to recognize the right of a wife to sue her husband in tort, it would and should have done so in those statutes which specifically set forth each of the several rights which the wife does have to bring suits for the protection of her interests, her person, and her property. In the absence of having done so, it is to my mind inescapably clear that there is no such statutory authority for the wife to maintain such a cause of action against her husband.
The main opinion's other fallacy is the reliance placed on the case of Taylor v. Patten. According to my analysis, there is no basis in that case for departure from the policy of preserving the harmony of the family. There a decree of divorce had been entered, and the family had thus already disintegrated, so the reasons for protecting its solidarity were not present. It was upon that basis, as pointed out in the concurring opinion, that this writer as the swing vote in a divided court concurred that, in that particular fact situation, where the wrong alleged was an assault by the husband directly upon the wife, and where the considerations favoring the preservation of family harmony no longer existed, the action should proceed to trial. It is submitted that no foundation can be found in that case to justify the present decision in saying "We affirm Taylor v. Patten."
It is upon the basis of what has been said above that it is my conviction that there should be no such abrupt change in our law by judicial decision; if there is to be such change, it should be by the Legislature. This would have the virtues not only of being done in the proper manner, but also by the proper authority. Further, if such a change were made, all affected thereby would be advised as to just what the change is, and when it will be effective, so they could govern their conduct, their contracts and their obligations accordingly.
I would affirm the decision of the district court.
HALL, J., concurs in the dissent of CROCKETT, C. J.
3. Notes and Comments
a. Discretion in Responding to Domestic Violence. There are risks if police are reluctant to arrest alleged abusers in domestic violence cases, and if courts are cautious about issuing ex parte protective orders. Likewise, there are risks and costs if police are quick to arrest and courts are quick to issue protective orders? Considering the competing risks, should ex parte protective orders be automatically issued in every case of domestic physical violence, regardless of severity and mitigating circumstances? Should mandatory arrest laws (requiring arrest in every domestic physical violence case) be enacted?
Consider the following: Suppose you are moonlighting as a police officer while finishing law school. One quiet night, just after you have finished reading materials in your family law casebook about domestic violence, at 3:00 a.m., you get a domestic violence call. You and your partner respond immediately. A man came home very late and very drunk, and started speaking very abusively and somewhat threateningly to his wife. Her two little children were awaken by the row. Tired, angry, and fed up with his filthy language and drunkenness, she headed to the door with the kids in tow; he stepped toward the door; she thought (he says wrongly) that he was going to try to block her way, so she hit him in the mouth, hard, and his mouth started to bleed. He had experience with domestic violence before (has was arrested), and he knows how the system works; so he called the police and reported his wife for domestic violence. When you arrive, he is still very drunk, very angry, now bloody, and he demands that you arrest his wife. She is much smaller than he is, but packs quite a wallop. Her two little daughters are clinging to her, frightened. (This hypothetical is based on an actual case a law student who worked part-time as a police officer, JB, had in 1995.)
If you have discretion to arrest or not, would you arrest her? If so, what would you do with her little daughters? Would you arrest both husband and wife? If so, what would you do with the children then? What do you think would be in the best interests of the children in this case? What would be in the best interests of the adults? What would in the best interests of the family? As a police officer, do you have the authority to accomplish what would be in the best intersts for the children, adults or family? As a police officer, what is/should be your role, authority and function in this kind of case? Do the courts have the authority to accomplish what would be in the best interests of the children, adults, or family? What is/should be the role, authority, and function of the courts?
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