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The Same—and Different

To change the laws of divorce, it may not be the law that has to change.
Finding Fault With No-Fault Divorce?

See what Justin Wolfers and Katherine Spaht have to say in a debate related to this paper.

No-fault is often considered a feminist initiative devised to treat women and men equally in the dissolution of marriages. Not so, reported Herma Hill Kay, in a 1987 article called "Equality and Difference: A Perspective on No-Fault Divorce and its Aftermath." The reform began when a lawyer serving as a California legislator noticed that different judges ruled differently on similar issues of alimony, child support, and child custody. His quest for uniform rulings led to a major reform in the way the state defined the grounds for divorce. The California statute that took effect in 1969 triggered change in most states over the next decade. By the time Kay assessed the reform's effects, the controversy was about an unexpected inequality—"a system that has operated to the disadvantage of women and children."

Kay contended that the fault was not no-fault's, or couldn't be "attributed entirely to the legal change." Whatever the basis for a divorce, she observed, "marriages characterized by a conventional division of labor by sex" yielded the same "inequality of situation upon divorce" because "women in traditional marriages are encouraged to become dependent upon their husbands for their identity and support."

Women with full-time responsibility for small children, for example, tended to make out worse than their former husbands. "Just one year after legal divorce, men experience a 42 percent improvement in their post-divorce standard of living," Lenore Weitzman found in a key study, "while women experience a 73 percent decline." An equal division of what a couple had jointly owned at the time of their divorce meant that the woman didn't get a share of her former husband's future benefits from his career, though she had invested in it by taking care of their kids.

Kay proposed a change in social norms instead of the law, to ease the burden of inequality by diminishing the problem of dependence. Her recommendation was "childrearing that will bind both fathers and mothers to the nurturance of the child." For families that ended up fractured by divorce, there would be measurable benefits. The disparity between the living standards of the women and men would likely be reduced, for instance.

Though it still ran into the problem of disparate impacts, the no-fault system had its advantages. The system based on "faults" like adultery and habitual intemperance had required husband and wife to go into legal combat when they really needed help in reconciling or ending their relationship amicably.

The old system also gave an edge to a spouse who would let a partner out of their union only after a deal that amounted to blackmail. A goal of no-fault divorce was to keep the means of divorce from being an instrument of extortion. As Kay observed, however, "What was not intended was that the shift to a no-fault approach should itself deprive either women or men of the capacity to negotiate a fair agreement."

When she concluded that the norms that most needed changing were social, Kay acknowledged that the solution would be hard to achieve. Identifying her vividly as a "difference" feminist, Kay's article closed by asserting that our society would succeed only if women took the first step: "Centuries of human experience show that if we do not take the lead, marriage and the family will never change." Cincinnati Law Review, Vol. 56, Issue 1, 1987.


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