Legal discussion of going beyond the theory
No Fault  
Guest Author, Anne Kass, - a retired District Judge of Albuquerque, New Mexico

In 1933, the New Mexico Legislature became the first state legislature to create no-fault divorce. Since then, all states have followed New Mexico's lead.

In 1991, a bill was introduced to the New Mexico Legislature to return fault to divorce cases. The bill was not passed.

Let me suggest that (a) returning fault to divorce law is not a good plan and (b) a better proposal is to remove fault altogether, which we've not really done so far.

Arguments against returning fault to divorce include the following:

First, returning fault to divorce would cause people to incur far greater legal fees than they already do. That is so because proving fault is very time-consuming, and lawyers' time is very expensive. Because the single greatest problem most divorcing families face is too little money, an increase in their legal fees would make their problems worse.

Secondly, putting fault back into divorce would certainly require more judgeships. That is so because many more divorce cases would go to trial, where they now settle out of court. Neither party would agree that he or she was at fault, and fault would have to be proven at trial. Also, the trials would be longer, as each side would bring in friends, neighbors and relatives to testify about the misdeeds of the other spouse. It costs New Mexico taxpayers $200,000 annually for each judgeship. Returning fault to Divorce would make the state's money problems worse.

Thirdly, returning fault to divorce would inflict even more trauma and injury on the children of divorcing parents. Children suffer greatly when they hear anyone criticize or denigrate either of their parents. If fault were an issue, the level of disparagement would increase dramatically, which would make the children's problems worse.

The 1991 New Mexico Legislature wisely declined to pass the fault bill.

However, I believe that, while we have no-fault divorce as a matter of law, we do not as a matter of reality.

Virtually every couple I've seen has analyzed the break-up of their relationship on a fault basis. Moreover, until a very few years ago, lawyers were trained to do fault-based analyses exclusively. In my experience, fault is all too alive and well in divorce cases.

Rather than promote the concept of returning fault to divorce, I believe it better to work towards removing fault in fact as well as in law.

Having observed hundreds of divorcing couples, each partner alleging the break-up to have been the other's fault, I am convinced that it is virtually impossible to fix the fault for a damaged relationship on only one party. Both spouses contribute to the failure.

Moreover, the on-going focus on fault analyses has enormously detrimental consequences to the families in addition to the financial expense.

First, it requires the expenditure of vast amounts of time and energy, as well as money, to try to prove fault. This diverts time, energy and money from positive goals, such as enhancing earnings or improving parenting skills. It diverts time, energy and money from planning the future to sorting out the past.

Next, allowing or encouraging a divorcing party to center his/her attention of the other party's fault inhibits introspection which is necessary if one is to learn from one's past mistakes. Fault analysis is the shifting of responsibility to someone else. This shifting of responsibility is, I think, one of the greatest shortcomings of the American culture, and its unhappy consequences touch every aspect of our society, but it particularly impedes development of sound personal relationships.

Also, as couples attempt to prove fault, they greatly increase their hurt and anger which, of course, has an awful impact on their ability to cooperate in the future. Future cooperation is essential for divorced couples in many ways, the most important being raising their children.

I have thought that another way for the legal system to address the problems would be as follows:

1. Reorient lawyers from fault analyses. This goal can be advanced by compelling law schools to teach alternative dispute resolution techniques and by teaching conflict resolution at all levels of education.

2. Make equal division of property and debts the rule. Equal is the law in New Mexico, but elsewhere the rule is "equitable" division. The concept of "equitable" is tied to the concept of "fault". There is no question that an equal division is often inequitable, particularly in cases where the parties have unequal earning power or separate property, but that problem can and should be fixed by step 3.

3. Once the property and debts are divided equally, a future cash flow analysis should be done and money shifted around. If there are children, one goal could be to create two homes with comparable material comforts. In any case, future economic survival is the standard, and it should have nothing to do with who did what in the past.

Essentially, we need to develop some no-fault principles to guide the allocation of limited resources, which is what divorce is really all about.

The historical experience of tying divorce remedies to fault clearly demonstrated that fault was an unwholesome factor. Changing from fault to no-fault divorce was, and is, a good idea.

The problems we are now experiencing under no-fault do not stem from the no-fault philosophy, but rather stem from the fact that to date no-fault has not developed beyond the theory phase. Before we consider returning to fault, we should first develop no-fault from mere theory to actual practice. 

For more Anne Kass articles, go here to select from complete list of 97 articles

For listing of over 200 helpful staff articles on Divorce, go here




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