Citations (2)



The Place of Fault in a Modern Divorce Law

Ira Mark Ellman

Arizona State University College of Law; Arizona State University (ASU) - Department of Psychology


Arizona State Law Journal, Vol. 28, p. 773, 1996

This article considers whether divorce courts should consider marital fault when adjudicating alimony claims or allocating marital property. It finds that approximately half the states follow no-fault principles in awarding alimony; considerably more than half do so in allocating marital property. The reason is that the potentially valid functions of a fault principle are better served by the tort and criminal law, and attempting to serve them through a fault rule risks serious distortions in the resolution of the dissolution action.

One possible function of a fault rule, punishment of bad conduct, is generally disavowed even by fault states. It is better left to the criminal law, which is designed to serve it, and in doing so appropriately reaches a much narrower range of marital misconduct than do the marital-misconduct rules of fault states.

The second possible function, compensation for the non-financial losses imposed by the other spouse's battery or emotional abuse, is better left to tort law. With the general demise of interspousal immunity, tort remedies for spousal violence are readily available. It will be the unusual case in which the fairness of the result will be improved by a judicial inquiry into the relative virtue of the parties' intimate conduct. In some cases, the result will become less fair. And the rules that invite such misconduct claims will surely increase the cost and degrade the process in many other cases, even those in which the claim is ultimately cast aside. Fault makes the outcome of litigation less predictable, and gives parties an incentive to raise claims of misconduct as leverage in the negotiation process.

Number of Pages in PDF File: 37

Keywords: Family Law, No-fault Divorce, American Law Institutes The Principles of the Law of Family Dissolution

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Date posted: September 3, 2009  

Suggested Citation

Ellman, Ira Mark, The Place of Fault in a Modern Divorce Law (1996). Arizona State Law Journal, Vol. 28, p. 773, 1996. Available at SSRN: http://ssrn.com/abstract=1467002

Contact Information

Ira Mark Ellman (Contact Author)
Arizona State University College of Law ( email )
Box 877906
Tempe, AZ 85287-7906
United States
480-965-2125 (Phone)
HOME PAGE: http://www.law.asu.edu/HomePages/Ellman/
Arizona State University (ASU) - Department of Psychology ( email )
Tempe, AZ 85287-1104
United States
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