You have heard the stories. You may have even lived it. A couple divorces and one side gets, not only injured, but insulted as well. No Fault Divorce is a child of the 70's. When people needed to prove fault to obtain a divorce it presented a number of problems. Some in intolerable circumstances couldn't get one because the peculiar sort of pain they were in did not fall into a statutory category. Or all involved became entangled in some legal fiction, picking a category the court would recognize and forcing the facts to fit.
In the 70's with the growing adoption of No Fault Divorce, many of those difficulties dissipated, and the divorce rate soared. Unhappy people uncoupled at an unprecedented rate. But all of that came at a cost. Blinded to fault, the system lost sight of some of the realities of marriage. Though most (but not all) states have statutes that allow the judge to consider "such other facts as justice required" in determining asset division and support determinations, no fault is at the core of the courts' determinations. That, I believe, has prompted some very bad results.
The stories are as varied as the number of jerks there are in the world. A husband works and supports the family. His wife runs around with the pool guy. When they separate he still has to give her half of everything and pay her alimony, essentially forced to support both the wife that cuckolded him and the bum with whom she did it.
Or a wife who is the sole breadwinner comes home to her unemployed husband who assuages his sense of failure by riding her like a horse. She is to cook, clean and cater to him (that lets him feel like he's still a man) while he contributes little if anything at all. But when it's time to go, all of that nothing he did in the home doesn't matter. The debts are mutual, the alimony is payable and the insult never goes away.
This brings us to the concept of Marital Misconduct that more states have begun to embrace. Marital Misconduct is defined differently in each but generally it is conduct that "undermines the marital relationship." It is not, however, simply garden variety bad behavior. Marital Misconduct encompasses fairly egregious acts such as spending money on extra marital relationships or an addiction of some kind.
Most states that do recognize it do so only when that behavior has direct economic consequences. For instance, if a spouse gambles away a portion of the couple's income or spends money in the pursuit and maintenance of an extra marital affair, that will be taken into consideration in the division of property and/or the amount of alimony to be awarded.
Some states go beyond that though and statutorily outline behavior that will be considered as marital misconduct even when the economic cause and effect isn't as clear. They include things like habitual drunkenness or addiction, adultery, domestic violence, or cruel and abusive behavior.
Unfortunately, not every state is on board. Some have statutorily determined that Marital Misconduct should not be taken into consideration in either the award of alimony or division of property. The rationale? Clarity and consistency. The result? Insult on top of injury.
Don't misunderstand me, I don't believe the court system should be required to sift through the mire of every bad act one spouse has visited on another. The system is not design to nor should it be the arbiter of hurt feelings. Besides, the evidentiary complications of that kind of thing are enormous. Proceedings would become protracted, painful and in the end totally indecipherable.
A court, however, can address the big wrongs and I think they should be required to do so. I think Marital Misconduct should be considered by every court, but they can't do it until their state legislatures permit it. I think we should make it a point to make that point with them. Yes, it will make things a bit more difficult for the court but I think it is lazy to punt on the issue. Lady justice should indeed be blind in that your access to justice should not depend on who you are. But she should not be deaf and dumb as well. People out to be held to account for what they do especially when you're asking someone else to pay for it.
Want sole custody...because....well just because...no problem, we'll put it in the petition.
Let the judge decide. Who is talking sense to these people???
Does Ms. Toler advocate a post Marriage "Death Penalty" as well?
How would a judge quantify a "sexless Marriage"?
Years spent together "for the sake of the Children"?
Spousal Obesity?
Alcoholism?
What penalty or quantifiable compensation for years of illness resulting in one spouse sacrificing for the sake of the other?
Will underemployment become a crime as well?
At what point will the phrase "for better or for worse" be taken seriously?
Divorce pays well.
Of course, the lives of their children are ruined, but hey what does that matter.
A sound negotiated divorce results in legal fees of less than $5,000 total.
A contested divorce can produce legal fees of $80,000 or well beyond that.
In a bad economy, divorce lawyers need to keep their profits up.
If you have identifable/liquidatable assets in your marital estate -- and children -- beware. The divorce lawyers will figure out a way to get a sizable chunk of your assets into their pockets.
Figure out what you want in your divorce. Do your own research. Be reasonable. Be your own advocate. Negotiate for yourself. Even if you have a divorce lawyer.
Natural Law tells us it's the union which establishes the contract. There are only two ways to exit this contract, 1) death. or 2) through a breach of contract (entering into union with another).
If a spouse has been found in breach of contract, they have departed and the other spouse may file for a just divorce. If breach of contract has not occurred, a spouse may still file for divorce, but they assume the breach of contract and are correctly viewed as the one who departed.
Therefore, any unbecoming conduct outside of a breach of contract by a spouse is not grounds for divorce. Though it may be grounds for separation. If the spouse who no longer loves the other, will not own it and confess their breach of contract, if one occurred, or assume the guilt of such a breach by filing for divorce themselves, then there is no easy way to navigate around those bitter waters.
Legislatively, if you are filing for divorce, you enter the court with proof (confession, testimony of two or more, indisputable evidence) of a breach by the other spouse or a settlement including a custody plan else custody is awarded to the non-filing spouse as the court deems them as not in breach of the marriage contract.
Indeed. Let's start by having women held accountable for initiating three times as many divorces as men. Divorce is, to a rough approximation, a female phenomenon, similar to the way sexual assault is a male phenomenon.
Ladies, it's simple, although admittedly a bit scary. What you do is stand up and say this:
"Nobody else in this family wanted a divorce. I did. I got it. I'm happier and healthier. Nobody else is."
Taking responsibility for your freely chosen actions is part of being an adult citizen who is the equal of anybody. Blaming society, culture, your upbringing and -- the all-time favorite -- whatever man happens to be in the vicinity, is not.
It takes two to make a marriage but only one to end it. That one, the overwhelming majority if the time, is the female partner. You do it. You own it. Get off that river in Egypt and take a stand.
To contrive that somehow the other spouse assumes the guilt, albeit a portion of it, provides a basis to the courts for allowing them access to property they have relinquished their rights to. Natural law dictates, the one who departs relinquishes their right to the property they have departed from. In a no "just" fault divorce, the departing spouse has relinquished their rights to parent their seed.
You hit this one head on. Let's those who participate in a no just fault divorce STAND UP and say, as you state "Nobody else in this family wanted a divorce. I did. I got it. I'm happier and healthier." and if not, may our courts say if for them.
It's their liberty to depart. I do not want to hold anyone "hostage" who wanted to leave, though I agree, it's time for them to OWN it!
Instead of owning it and departing, they contrive consequences (divorce) to actions (irreconcilable differences: it's your fault I'm not happy, you no longer want what I want) not deserving of them, that they might depart and take property that is no longer theirs.
If my marriage was like a business contract, my partner would not have been able to embezzel corporate funds without consequences. In my case, the funds my ex skimmed were noted but never counted -prior to our divorce filing -(HE FILED), so in the end he got the money, I got the debts and the kids....Took me 10 years to "move on". If we were not married, my ex's actions would have been criminal and he would have been in jail.
Yet, we do not allow divorce to truly occur, we keep couples bound by time, by shared custody, by finances. In essence we have legislated the putting away of our former spouse. We have instituted a type of polygamy.
There is no value is staying with one who does not love you or staying with one you do not love. That is a faux marriage. Please, I do not want the "love" of one if I have to hold the proverbial gun to their head. Let them go, and let them go completely.
If the one you are with is not pleased to dwell with you, and they want to go, let them go. It would serve us well to return to Wisdom....Let the unbeliever depart, you are no longer bound and neither are they.
Ask this fundamental question, because the statistic's don't lie. More than 50% of marriages are failing. 2nd marriages are even worse. Nearly 80% of divorces are started by women.
Yet, from studies about infidelity, it's about 50/50. So the issue of cheating in marriage swings both ways; however, the perception is the man usually cheated.
If the statistics for who intiated the divorce, I could believe outside factors are not at play with divorces. It has become all too obvious, that divorce has financial motivations for many parties.
Maybe we should be honest and either stop getting married and engage in yearly contracts with pre-engagement agreements over any children born or we should add something to the marriage vows...'Till Death do us part or I get sick of the sob/b'
Women, divorced and otherwise, are constantly complaining about not getting compensated enough for the housework they do (most of which they do on their own initiative as part of a competition with other women, as opposed to at the urging of or to please their husbands). I'd like to see them put a price tag on their kids.
What would it be worth to to you to shoved to the fringes of your children's lives, to go from being an involved parent who reads them to sleep every night and drives in the car pool and helps with homework, to suddenly being something more like a grandparent or aunt, who sees the children every now and then.
What is your price on that one, ladies?
Because the vast majority of divorced fathers are paying it with their hearts, souls and, yes, their lives every single day of the year. Money? This isn't about money. It's about child-stealing.
The purpose of no-fault divorce is to make divorce simpler, faster, and cheaper. Many of the simpleminded out here believe that eliminating no-fault divorce would somehow get them off the hook with regard alimony. Fact is, if you tell your average ex-husband that he can get out of alimony and all he has to do is light himself on fire, he'll do it.
a) Tie Alimony awards (or lack thereof) to marital conduct.
b) If option (a) is deemed unfeasible or too time consuming for the courts, then eliminate Alimony altogether
An excellent article. Balanced, fair, and gender-neutral too.Thank you for reaffirming my belief in our legal system Judge Toler. BTW - I love your TV show.
When exes move to another state, when there is an extreme difference in economic power between the two, when legal services are not available but nor can one party afford the $5,000 retainer (and many thousands to follow) - I say again - we have unenforceable pieces of paper.
Even if the paper takes into account "bad behavior."
Worse behavior? Worse insult? The ability for the offending party to sidestep the consequences.
How do we solve that?