Marriage as Contract, Opportunistic Violence, and Other Bad Arguments for Fault Divorce

Abstract

The concept of no-fault divorce, which has gained acceptance in one form or another in all states today, recently has come under attack by scholars and legislators who blame no-fault divorce for various societal ills. One study, published by Professors Brinig and Crafton in 1994, actually links the advent of no-fault divorce to an increase in spousal violence. Professors Ellman and Lohr respond in this article to the recent barrage of no-fault criticism, with particular emphasis on their disagreement with the findings of Brinig and Crafton.

The authors begin with an overview of the various arguments made against no-fault divorce and why these arguments are unpersuasive. The authors then critique the marriage-as-contract theory on which Brinig and Crafton's study is based, refuting Brinig and Crafton's hypothesis that reintroducing fault into divorce will help improve marital conduct. The focus of the article then shifts to the empirical findings of Brinig and Crafton, which purport to show that no-fault divorce has caused an increase in domestic violence. Professors Ellman and Lohr analyze the methodology and conclusions of Brinig and Crafton's study, arguing that the analysis is flawed and the results meaningless.

Professors Ellman and Lohr conclude that although reducing the incidence of divorce and domestic violence in our society are both laudable goals, abandoning no-fault divorce is not an effective means of achieving them.

Keywords: No-fault Divorce, Family Law, Empirical Analysis