Throwing the Baby Out with the Bath Water: Why Divorce Happens to Good Spouses

Written by Kevin Senich

Their eyes beg answers to questions they don’t want to ask, answers their ears don’t want to hear. A box of Kleenex that truly understands gender equity is always within easy reach. Those sullen with resignation and those animated with indignation are equally inconsolable. They represent a cross section of Americans who have invested in marriage, and lost.

            Nothing in legal practice can be more painful than having to tell a good spouse that no lawyer’s art can save their marriage from divorce or truly compensate them for their loss. Divorce happens to good spouses. It happens by design.

Today divorce process is about processing divorces. Nothing more, nothing less. Marriage is not an issue. The moment a deputy clerk of courts punches a time-stamp on a petition in ceremonial recognition of filing, marriage is over. Be assured process will dedicate itself to treating all divorcing spouses, the good, the bad and the indifferent, with the same dispassionate detachment. This passes for fundamental fairness.   Take a number. Get in line.

Please understand one thing. No fault did more than change the legal process for divorce. It changed the nature of marriage.

A photograph of marriage fifty years ago would look very different from one today. Prior to no-fault, marriage was a protected legal status. When no-fault eliminated fault, it also eliminated those protections. It did so by eliminating the very standards of conduct by which marriage as an institution held itself accountable. Bigamy, adultery, abandonment, gross neglect of duty, extreme cruelty, imprisonment, habitual drunkenness … all the various manifestations of marital wrongdoing that the states had written into law were the legislative equivalents of codes of conduct written in the negative. They were the “Thou shalt nots” of marriage. By expressing the bad and unacceptable, the codes defined by implication the good and acceptable. Fault was the reverse image of what marriage should look like; it was the negative from which society’s picture of marriage was developed.

With the negative destroyed, it is little wonder we no longer have a clear picture of what marriage should look like. Marital misconduct has become irrelevant. People can now engage with impunity in conduct once considered outrageous, conduct which once upon a time had serious adverse legal consequences. With the exception of bigamy which has its correlative in the criminal code, erstwhile violations of those pre-existing standards have no legal consequence whatsoever.   Today even adultery is not unlawful in this sense. Adulterers are not penalized, at least not in court.

Debate may never resolve whether fault based marital conduct codes once were a positive force for stability in marriage, or solely the focus of ever greater contentiousness in divorce process. One thing is certain. They are gone. Their vestiges may remain on the face of a few statutes in some states, but their force in law is no more.

Yet, marital conduct codes expressed in terms of grounds or fault were inarguably important in at least one sense. The very existence of these legally enforceable standards mitigated the risk of investing in marriage. Compliance with those minimum standards ensured that marriage would be protected by law, that the investment in marriage would be secure. Conversely no fault in its essence is a system without standards, a code without relation to conduct. Unavoidably, the process it spawned left marriage without protection. In eliminating the problems of fault based divorce, the good was thrown out with the bad, the baby with the bath water.

Divorce happens to good spouses because the rules of marriage changed; more appropriately speaking, the rules were thrown out.   As such, marriage today is sacrificed on the altar of expediency in a court process that simply finds it more efficient to divorce people than to examine the merits of marital commitment. In exchange for less stress in court, we have more injustice for marriage. This is by design. Divorce happens to good spouses because the law no longer cares to distinguish between right and wrong, good and bad in marriage.

Take a number. Get in line.

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