Back in the day, the traditional notion of marriage was a big deal; by choosing to elevate a relationship from “courting” to Marriage, couples genuinely meant the vows “in sickness and in health,” “for richer or poorer,” and “til death do us part” literally. Divorces were rare and in most cases could only be granted for specific reasons upon proof. The most common reasons for granting a divorce were:
- Physical inability to have sexual intercourse;
- Cruelty/Abuse; and
- Prison confinement
Upon only upon proving fault of the other spouse, was a divorce granted; the spouse who wasn’t at fault would often get a larger share of spousal support or marital property. For cases where both spouses sought divorce and could prove the other spouse was somehow at fault in some way, the court would determine which spouse was least at fault and grant the divorce accordingly.
The spouse whom the divorce was sought against could object to the divorce by disproving or presenting a defense to the fault complained of such as:
- Collusion-spouses agreed to make up a story to support their request for divorce and to increase the likelihood of a divorce being granted.
- Recrimination– the spouse requesting divorce engaged in the same/similar conduct complained of or is otherwise equally at fault.
- Connivance– the spouse requesting divorce agreed to and/or participated in the fault. (Example: the couple voluntarily participated in group sex or agreed that one spouse would have sex with a 3rd party for money.)
- Provocation– one spouse was provoked by the other spouse to act in a certain way.
- Condonation– the spouse requesting divorce knew about the complained of conduct, forgave the conduct, and resumed the marital relationship.
Proving these defenses is usually time consuming and can become very expensive. However, considering the fact that the spouse who was not “at fault” for the divorce would ultimately benefit from the divorce, this type of divorce is definitely the most attractive option when compared to a “no fault divorce.”
It wasn’t until recent years that most states began to distinguish themselves by creating “no fault” divorce laws. These “no fault” divorce states leave a wronged spouse with no other recourse than the divorce itself.
For instance, in California, all divorces are classified as “no fault.” This means that the spouse who wants the divorce is not required to prove that the other spouse did something wrong. In fact, with some exceptions, the courts generally don’t care why you’re getting a divorce; this is why the only two “reasons” for divorce that are documented in divorce pleadings are:
- Irreconcilable Differences (the spouses couldn’t get along), or
- Incurable Insanity- one spouse is “insane” (While many people may believe the other spouse is “crazy”, to use this reason, claims of insanity must be substantiated by a medical doctor).
It’s because of this divorce model that divorces are so easy to obtain and possibly the reason so many people jump into marriages when they aren’t ready to commit in the way traditional marriages were intended.
I wonder if going back to the strict guidelines for divorce would lead us back to everlasting marriages that are based on true love and an ultimate decline in divorce rates; or at least lessen the temptation to jump into a marriage without considering whether you really intend “til death do us part.”
What do you think? If you knew that getting a divorce would be a long, tedious, expensive process or even impossible, would you be (or would you have been) more careful/selective before saying “I Do”?
Give me your thoughts!