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Overview:
No-Fault Divorce Modification Initiative
The proposed statute is, in a substantial way, a
return to the former fault
based divorce system - however it is at the same
time a retention of the
current system in a significant way as well.
In other words - a compromise;
something the drafters of the Family Law Act
of 1969 forgot to do. The net
result, I believe, will be to substantially reduce
the high incidence of
divorce in as politically and culturally palatable
a way as possible.
The fundamental features of the proposed statute
are two fold. First, it
reinstates the old fault standards to be utilized
for the benefit of a party
who feels they need to resort to such.
(e.g. a wife with a recidivist
adulterating husband might want to sue for adultery
rather than
irreconcilable differences ). Yet it also
allows for the No-Fault standard
to be utilized as well. This means that
parties can choose to petition for
divorce based on any of the former fault standards
or irreconcilable
differences. The obvious default for many
parties will be to seek divorce as
a mutually consensual decision based upon irreconcilable
differences.
There's a catch. And that leads to the
second fundamental.
Where there are minor dependent children to the
marriage, the No-Fault
standard for granting a divorce, irreconcilable
differences, is not
available. That means divorcing parties
with dependent children will need to
establish grounds for the divorce under the former
fault grounds or stay
together. This is the salvo desperately
needed by the family. It will make
parents with dependent children think before
seeking legal assistance of
counsel and thereafter being vacuumed into high
speed "divorce mill" "family
law practices and court procedures. If
your thinking that sounds like a
return to the vicious and acrimonious fault system
we jettisoned long ago;
read the footnote below and the white paper attached.
The proposed statute has a kind of built in "Mulligan"
rule. If you
discover post marital ceremony that you "married
the wrong party" you can
fairly easily start over and try again by petitioning
the court under
irreconcilable differences; six months later
your out. However, if the new
family has developed so much as to involve minor
dependent children - the
fundamental issues of the family unit are present
and the fledgling family
should be given protection and support both from
the law and public policy.
The only other significantly important thing about
the statute is that
evidence of fault is admissible for issues of
property settlement in all
cases (except where both parties mutually petition
under irreconcilable
differences). This is a reversal from the
current statutory scheme. Under
the No-Fault system - no evidence of fault or
malfeasance is admissible for
division of community property. Meaning
if you happen to be a violent,
sleazy or carnivorous "Mike Tyson" personality
type and sue for divorce you
would still get half the community property,
despite your repulsive ways.
Isn't that fair ? No. Covenant breakers
should pay. Period. If you
violate your promise to keep covenant and act
faithfully "till death do us
part", you should not be rewarded with an even
split of the marital property.
The other party has been injured. More
significantly the institution of the
family has been injured. That's why the
trier of fact should be charged with
determining who gets how much based on evidence
of malfeasance. The current
egalitarian, radical individualism standard of
"judge not lest you be
judged" simply has not worked in family court.
In fact it's killing us.
The old statutory scheme was criticized for locking
people in a loveless
marriage. That argument remains defeated
by the proposed statute. This is
demonstrated by the classic scenario of a man
who beats his wife and she
thereafter commits adultery - the doctrine of
recrimination would block a
judgment of divorce for either party because
each party was guilty of marital
fault. However, under the proposed statute
the above parties could seek a
divorce upon irreconcilable differences - assuming
there are no dependent
children. If there were dependent children
then the old regime would play
out and the parties would not be granted a divorce
(most likely) for the
benefit of the children and of the family.
When the family no longer has
dependent children the No-Fault standard would
be allowed again and the
parties could part lawfully.
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