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; Center for the Study of Law and Society, Berkeley Law, University of California, Berkeley
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
Date posted: September 3, 2009
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