Fault-Based Divorce Case Study

Christy Shields
Professor Jenkins
ENC1101
9 April 2014
The Case for Fault Based Divorce Sadly, statistics is showing that approximately 50% of first marriages will result in divorce (Kazdin). Dealing with divorce and experiencing the process first hand, many find their personal situations and laws governing divorce to be unfair, this is particularly true in cases of adultery. No matter what the reason, divorce laws need to be based upon equality. In many cases, people find the need to take their heart out of the dissolution of marriage process and allow it to carry out as a business deal. The laws governing divorce have to be modified to achieve equality. The Florida bar states, the term for divorce is a full Dissolution of Marriage
The first divorce was called an Absolute Divorce, which was a complete and final dissolution of marriage similar to an annulment. The first divorce was granted mostly to wealthy couples and was fault-based (McCoy 502). The second kind was called a divorce from bed and board, which was most common. This divorce was more of a legal separation, which allowed the couple to live separately, but did not dissolve the marriage (McCoy 502). It was also a fault based which recognized the need to remove the offending party from the home permanently without negating the marriage. The problem with divorce during this period was that the laws of marriage included the doctrine of coverture (McCoy 503). This doctrine gave a husband full control of his wife’s assets including all properties owned prior to the marriage (McCoy 502). The husband incurred a legal duty and moral obligation to provide protection, shelter, food, clothing, and all financial support (McCoy 504). While a marriage entered into in good faith could be beneficial to both parties, a union that did not work out as well would leave the wife financially devastated. The courts rectified this by granting conditional divorces upon promise of the husband to support his ex-wife financially (McCoy 504). So began the system of alimony and the continuance of fault-based
Thomas B. Marvel, author, lawyer, and sociologist, noted that in a study of 38 states with no-fault divorce the rate of dissolved marriages increased by 20 to 25%. No state showed a decrease (Marvel 544). Fault- based laws allow the courts to intervene and lend support in saving a marriage. Time elements may be imposed giving couples a chance to rethink the issues and perhaps settle their differences. Most of today’s divorces are unilateral which means that only one partner wants out of the marriage (Duncan and Hoffman 641). The spouse not wanting a divorce has no control over this life-changing event. In no-fault cases, family court judges have more power in deciding issues such as custody, splitting marital assets, and spouse support (Meyers 1). The judge’s decisions are apt to be based on emotions, which may or may not be objective, whereas if fault were proven, the judge would base his decisions on facts rather than emotions (Meyers 1). A fault state would more than likely reduce the percentages of failed