[The following article is remarkably candid about no-fault's flaws. When you realize that this article was written by the then-chairman of the ABA's Family Law Section, there is a cognitive disconnect because, every day, members of the bar represent clients under the no-fault regime.]

FAULT ENFORCES ACCOUNTABILITY
- by Harvey L. Golden & J. Michael Taylor

From: 10 Family Advocate, 1987, pages 11-13, 43.
(a publication of the American Bar Association Section of Family Law)

Time was when the dispute was not over property division and alimony, but whether to allow a divorce at all. Long before the development of pure no-fault divorce, marriage was considered by society to be a status, an institution with fixed rights and duties rightfully protected by the state and having at its core the concept of marriage as a sacrament. Marriage was considered a stabilizing social, economic, religious, and moral force for good.

To break the contract with God and spouse, a very good civil reason was needed, such as an intolerable, unavoidable circumstance. It had to be intolerable because marriage, as the keystone of civilization, was not to be easily dissolved. It had to be unavoidable because the state would not excuse an individual from a terrible situation if it were the product of one's own efforts.

While the other spouse often caused the intolerable circumstances (by adultery or habitual drunkenness), it was also possible for him or her not to be at fault. Either impotence, insanity, or long absence with presumption of death (popular in seafaring jurisdictions) were accepted reasons for divorce in some states, while others recognized joining the Shaker religion, vagrancy, and insanity as sufficient grounds.

In reality, the term "fault" is a misnomer because divorces were not awarded on the basis of blame to punish a guilty spouse. Rather, the courts attempted to protect an innocent spouse by recognizing that a life sentence to an intolerable circumstance was worse than allowing divorce. A divorce was simply a sanctioned excuse from one's marriage vows.

Although the high threshold such an attitude imposed is extreme by today's standards, by making divorces difficult to obtain, states reinforced the virtues of self-sacrifice and tolerance while keeping families together. This also allowed children to grow up in a two-parent, complete environment.

The intent was to encourage married persons to make the best of their situations and find solutions to their problems, within the framework of marriage. However, somewhere along the line, the states' protection of marriage has been shunted aside to accommodate just the opposite attitude. Nowadays in some states, a couple can have a marital dispute and be divorced without much of a second thought.

Some civilized people believe divorce should not be quite so easy and that an expeditious accommodation to "lightweight" reasons actually encourages the breakdown of American family life. C.f. Friedman, "Rights of Passage: Divorce Law in Historical Perspective," 63 Or. L. Rev. 649 (1984).

Critics of the "fault" approach argue that without easy access to divorce, the normal reaction to a miserable situation is not to do the best you can to deal with it, but instead to remain miserable and make those around you, including your children, miserable, too. This is undoubtedly true in some circumstances. Therefore, adding no-fault to the traditional grounds for divorce is important as a safety valve because it allows an escape hatch from marriages that were clearly a mutual mistake or have become so.

NOT A SUBSTITUTION
These same critics, however, mistakenly believe that the adoption of no-fault grounds by every state in the union heralds a beneficial end to the fault system. This is simply not true because most states have incorporated no-fault grounds into their traditional framework, not substituted one system for another. At least 38 out of 53 U.S. jurisdictions consider fault in awarding divorce, property division, or alimony. Freed and Walker, "Family Law in the Fifty States: An Overview," 20 Family Law Quarterly 461-62, 483-84, 494-95.)

Even among jurisdictions that have adopted "pure" no-fault, some have retained consideration of fault in property division and alimony. (Of 17 state courts that considered whether fault should be a factor in property division and alimony, 11 held it permissible and only six rejected it outright. See, "Fault as a Consideration in Alimony, Spousal Support, or Property Division Awards Pursuant to No-Fault Divorce," 86 A.L.R.3d 1116.)

Very few states totally ignore fault. That is because we are brought up to believe that people should be held accountable for their actions, and that courts should establish such accountability and consider it.

FAULT-BASED DIVORCE TODAY
Some mental health practitioners and others who have no faith in, or full understanding of, the traditional adversarial court system consider fault-based divorce obsolete. This is not true. Fault still plays a seminal role in the issues of alimony, custody, and property division when there is a need to protect an innocent spouse from being savaged. The question remains: Why should a faithful, decent spouse suffer a serious diminution in lifestyle just because the other spouse decided to trash the marriage vows?

It is almost impossible for individuals in a family to disentangle their lives, even in short-term marriages, without at least one of them suffering some hardship. Decisions that are based on continued mutual support during the marriage - concerning cohabitation, subordination of career, educational or personal goals, and financial commitments, to say nothing of child rearing - are necessarily compromised when a marital relationship is dismembered primarily by the unilateral, bad-faith conduct of one party. At the very least, it should be the courts' duty to review such hardship and alleviate its harsher effects on equitable terms.

In this context, if a party's substantial misconduct caused the dissolution of the marriage, then that party should be less accommodated when the consequences of divorce are assigned. There are two rationales for this position. First is the equitable argument that one should not be allowed to profit from wrongdoings by putting the burden on a truly or largely innocent party. When one spouse spends all of his or her time and effort weaving together the fabric of a marriage while the other spouse spends his or her time unraveling it, why reward the profligate one? Why should we mandate our courts to ignore equity, justice, and fairness in appropriate cases of significant fault?

Second, substantial fault preserves the concept of individual accountability, which is missing from pure no-fault theories. One way to discourage adultery, physical cruelty, or other genuine misconduct is to place the burden of dissolution squarely on the shoulders of the responsible party. Pure no-fault removes this disincentive and, indeed, promotes easy access to divorce without regard to accountability.

Putting Fault Back In. Fault should be retained not only as a ground, but also as one of the panoply of factors to be used in determining property division and alimony. Contrary to the fears of pure no-fault advocates who believe that adding such factors will destroy delicate statutory schemes, fault can easily be reintroduced as a factor to be considered in making alimony awards and property divisions in pure no-fault schemes.

Some states' fault-neutral statutes have a "catch-all" consideration to provide for unusual situations. In one case where a husband brutally attacked his wife, a New York judge determined that fault was the most important factor to be considered, and lucidly used its "catch-all" statute as follows:
The legislature could not possibly have anticipated all of those situations and contingencies which invariably arise in the future and which were not contemplated when the statute was enacted. The "catch-all" factor affords the Court in each case the latitude required to do equity, if you will.
To hold, as a matter of law, that fault is not a proper factor to be considered would be to deprive the Court of one valuable facet of the special discretionary tools with which the enactors of the equitable distribution law so carefully and wisely equipped the Court in exercising its function under the said law. In a proper case, as this one, the Court must consider fault as a factor.
Farenga v. Farenga (N.Y. Co.). N.Y.L.J., Mar. 14, 1983. At 12, col. 4. 9 F.L.R.2343.

CONSEQUENCES OF PURE NO-FAULT
California was the first state completely to abolish fault grounds for divorce and essentially abandon the clean hands doctrine, thereby confusing equal with equitable. In practice, the adoption of pure no-fault strips the more blameless spouse of leverage and bargaining power, which would otherwise exist in a fault-based system. At least in California, pure no-fault has resulted in:
(1) Husbands more frequently initiating no-fault divorce;
(2) Alimony awards becoming less frequent;
(3) Overall child support amounts being reduced;
(4) Reduction in awards of family assets to the wife;
(5) An increase in making wives responsible for household debts.
Seal, "A Decade of No-Fault in California," Family Advocate, Spring 1979.

Alimony. California's concept of dissolution required putting everything on an economic footing. At least with respect to the issue of spousal support, this meant the adoption of a "welfare state attitude" because it provided for the award of alimony only on the basis of demonstrated need. Weitzman and Dixon, "The Alimony Myth: Does No-Fault Divorce Make a Difference," Family Law Quarterly 141, 148-49.

Before long, transitional or rehabilitative alimony became fashionable because there was an expressed push to make the supported spouse "self-sufficient." Cal. Civ. Code § 4801; Id., at 153.

Florida has also contributed to this attitude. It was presumed that the wife would eventually be completely on her own; the only issue was how soon. This was and remains draconian. One cannot help but envision a 60-year-old homemaker at the end of a 35-year marriage being granted "rehabilitative" alimony for two years so that she can attend secretarial school so as to become self-sufficient! This is not as far-fetched an attitude as you may think if rehabilitative alimony continues to be misapplied.

Only a few months ago, in the Chicago Tribune, writer Jim Spence reported the findings of a University of Colorado economics professor, H. Elizabeth Peters, which reveal that the divorce rate doesn't vary significantly between fault and no-fault states, but that the circumstances of women in no-fault divorces are seriously reduced.

In her detailed study, Peters reports that the chances of receiving alimony are reduced by 25 percent in no-fault divorces and those who do receive alimony are awarded about $1,700 per year less than women who reside in states with more traditional divorce rules. They also get about $800 less per year in child support.

Professor Peters concludes that in states with traditional barriers to an easy divorce, women have more to bargain with, and receive more reasonable and realistic treatment. (See also McLindon, page 30.)

According to an article published in the Fall 1980 issue of the Family Law Quarterly, alimony under the California system is justified only in three situations of compelling financial need:
- To support women with custody of children.
- To provide transitional support to help wives become self-supportive.
- To provide support to those incapable or too old to be self-supportive.
Weitzman and Dixon, "The Alimony Myth: Does No-Fault Divorce Make a Difference." Family Law Quarterly, 141, 148-49.

The California approach does not accomplish these goals very well. See Weitzman and Dixon, Id., at 162-65 and 183-84. Perhaps because, conceptually at least, "no-fault" has come to mean "no responsibility."

A major difference between the California no-fault system of promoting economic self-sufficiency and the fault system of protecting the significantly more innocent spouse is the difference in the manner in which they treat the spouse's expectations during marriage. In California, for example, it appears that the wife's investment of time, energy, and labor in her husband's education is given less consideration than in fault states.

Should expectations be protected? Some people work toward a particular future goal, be it a comfortable existence, children, security, personal achievement, companionship or whatever. If the state is unwilling to protect aspirations, a vital element in the quality of life may be lost. When one spouse has subverted personal ambitions and changed directions in life to accommodate joint marital goals, and the other spouse subsequently makes a mockery of those sacrifices, it is unjust to prohibit a court from considering those facts, as does, for instance, Wisconsin.

Property Division. The problems inherent in property division in pure no-fault schemes are most apparent in Wisconsin, where marriage is considered a partnership in which both spouses make different contributions that are presumed to be of equal value until proven otherwise. Fineman, "Implementing Equality: Ideology, Contradiction and Social Change," 1983 Wis. L. Rev. 789, 792-93, 834.

One of the troubles with establishing a prima facie presumption (of equal contribution, for instance) is that judges begin to view it as a standard, and feel that there is less chance of reversal if no deviation is allowed. Can we fairly consider as equal the contributions of the indolent wife who unproductively sits around the house all day compared to the husband who puts in 12- to 14-hour workdays? Or is a hardworking wife equal in her contribution to a chronically unemployed, lazy husband? In practice, this system has been found to overcompensate childless unemployed women and undercompensate working custodial mothers. Id. At 841- 42.

Morality. The Wisconsin approach points to an issue for which the fault system is condemned: "morality." Before the advent of a no-fault or consensual divorce "escape hatch," parties to a divorce would often haggle over who was going to accept blame for the dissolution. This was to avoid bars against divorce on the grounds of recrimination.
Also, at the time, a public assignment of fault was perceived as damaging to reputation and having adverse effects on the children - or at least the guilty spouse's relationship with offspring. Getting the "morality" issue out of the divorce business was one of the goals of those promoting pure no-fault.

In the Wisconsin approach, we see a legislature specifically adopting a so-called "feminist" ideology, which, regardless of the merits, presents a new form of morality and is therefore a substitution of moralities, not the elimination of this issue. Id. at 811, 884.
Regardless of the admirable goals of such a philosophy, however, the Wisconsin approach does not benefit the women it was designed to help.

Accountability. The total abolition of fault as a consideration omits the very important concept of individual accountability. Faultfinders endorse the "you break it - you pay for it" philosophy if one spouse is considerably more at fault than the other. If both are approximately equally or seriously at fault, the degrees of culpability should be weighed and may cancel each other out. However, courts should be free to find substantial fault, if it exists, and fairly determine the disposition of assets and allocation of support. Fault should be considered along with other typical factors of age, health, debt, education, and income, among other things.

The fault-based system was born as a compromise between those who wanted to prohibit divorce entirely and those who wanted to allow it upon consent. After centuries of development, a wide variety of competing concerns have been and continue to be effectively accommodated by the retention of fault as it relates to fairness, either in granting divorce or alimony or property division or any combination thereof.

Every state in this country today can say that it provides a means for divorce when both parties agree to the split. This is beneficial. In most jurisdictions, where no-fault has been added to the traditional fault framework, although no spouse can indefinitely block a divorce, a means is also provided for ensuring fairness to the significantly innocent spouse and holding the profligate party accountable for his or her own actions.

In those few jurisdictions where "pure" no-fault has been substituted for the established system, judges are expressly prohibited from considering fault even in adjudging alimony and property division. Time will tell whether the dangers inherent in such mandated indifferences to the human condition will cause states to revert to a more eclectic approach, restoring individual personal responsibility to the legitimate concern of the judge.

Streamlining many of our procedures and statutes is, of course, largely necessary and beneficial, but when so engaged it is vital to give profound thought to what is being discarded, and to acknowledge the admonitions of H. L. Mencken: For every complex problem, there is a solution that is simple, neat and wrong!

This article is loosely based on a position paper submitted by Mr. Golden to the Alimony and Child Support Symposium of the American Bar Association Family Law Section in Austin, Texas, earlier this year. Mr. Golden is chairman of the American Bar Association Family Section and practices law in South Carolina. Mr. Taylor practices family law with Mr. Golden and is a former special assistant U.S. attorney.