As a legal assistant at a family law firm (and as a soon to be law school graduate), I see firsthand how the current no-fault divorce regime can create problems for spouses and families–perhaps more problems than it solves.
While no-fault divorce was initially introduced to reduce the hostility and legal complexity of marital dissolution, it has made divorce too easy, removing the incentive for many couples to resolve issues and stay together for their (and their children’s) individual and collective long-term benefit.
Adopting more of a fault-based divorce model could help reintroduce clarity, responsibility, and intentionality into marriages across the country. And before you dismiss this blog post for being sexist, misogynistic, or reactionary, consider my thoughts that follow below.
One of the biggest benefits of fault-based divorce is that it provides judges with clear, objective standards for making difficult decisions. No-fault divorce makes it difficult to determine credibility, assess fairness, or ensure that justice is done when the parties are at odds with each other.
No-fault divorce is typically only helpful if the parties agree about the terms of the marriage dissolution. If the parties disagree, Lord, help the court. The loosening of the legal standard for dissolution of marriage that no-fault divorce introduced gives rise to a host of other squishy legal jargon.[1] When fault is at issue—whether adultery, abuse, abandonment, or substance abuse, or other fault bases—judges can rely on specific evidence of the amount or degree of fault to allocate property, award custody, or determine spousal support. This encourages accountability and discourages bad behavior within marriages by making the legal consequences of misconduct more meaningful.
When divorce is too easy, relationships become disposable. Fault-based divorce raises the stakes and encourages couples to work through their problems rather than seeing separation and dissolution of the marriage as a quick fix. This doesn’t mean forcing people to remain in unsafe or toxic relationships. Rather, it promotes a culture in which marriage is taken seriously, and sincere effort is expected. Communities thrive when families stay together—there’s more economic stability, better mental health outcomes, less juvenile delinquency, and fewer children caught in the middle of acrimonious disputes. A system that upholds the value of commitment, even in the legal arena, contributes to the strength and resilience of the social fabric.
Children suffer the most when families fracture without serious effort to repair the relationship first. While there are certainly cases where divorce is necessary for the well-being of everyone involved, making convenience-based divorce the norm can leave children with a sense of instability and confusion. When parents are required to show a valid reason for ending their marriage, it reinforces the seriousness of that decision and ensures that it’s not being made on a whim or at the expense of innocent, vulnerable, dependent children. Kids benefit when both parents are committed to the hard work of reconciliation and the resulting intact family when possible. Even if a marriage should end and a family break up, children are at least entitled to having the harm of divorce minimized through mutual parental accountability.
While no-fault divorce was meant to simplify the legal process, it has clearly, though inadvertently, devalued the institution of marriage. By reintroducing fault-based elements into the divorce process, we can promote accountability, reinforce (and enjoy the priceless benefits of) social norms around commitment, and foster the well-being of children. As someone immersed daily in family law, I believe it’s time to revisit how we treat marriage and divorce—not just as personal decisions, but as legal acts with profound social consequences.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] For instance, the “best interests of the child” custody standard.
