The Misguided Movement to Revive Fault Divorce, and Why Reformers Should Look Instead to the American Law Institute

Abstract

Many American states allow unilateral no-fault divorce without significant waiting periods, and typically these states also exclude consideration of marital misconduct in the determination of financial awards at divorce. In recent years these laws have come under increasing criticism in both political and academic debates. This article examines those debates. It surveys the available social science evidence on whether such pure no-fault laws increase divorce rates, considers the possible negative impact of proposals to reinstate waiting periods, and analyses three other arguments made for reforming pure no-fault laws: that fault rules are needed to deter bad or selfish marital behaviour, to avoid unjust outcomes, or to prevent parties from shirking their marital responsibilities. The article concludes that there is little evidence that pure no-fault laws have any negative effects, considerable reason to believe that lengthened waiting periods do more harm than good, and both practical and principled reasons to be cautious about using legal sanctions to shape or affect marital behaviour. Finally, the article briefly summarizes some proposals recendy endorsed by the American Law Institute for reforming the laws of property division and, especially, alimony (renamed compensatory payments). It argues that an important virtue of these proposals - an improvement in the predictability and reliability of financial remedies at divorce - would be impossible to realize in a divorce regime that allowed consideration of marital misconduct.