Stolen Vows

The Illusion of No-Fault Divorce and
The Rise of the American Divorce Industry

In order to examine Mr. Berne’s charge, we first need to understand what no-fault divorce is.

In no-fault divorce, judges do not arbitrate anything other than the so-called settlement agreements. Irreconcilable differences are already determined to be “fact,” once one spouse files for divorce. The filing spouse is not required to claim or prove anything and, conversely, the defending spouse is not allowed to hear the list of grievances and defend him/herself against them — or ask for help in resolving them. So my first criticism about Mr. Berne’s commentary is that he misunderstands the very nature of no-fault divorce.

What most people do not understand is that the no-fault divorce took away the opportunity to hear and address the marital conflict by making it null and void. Lawmakers eliminated a useful inquiry process and replaced it with an automatic outcome. No other court process is so devoid of recourse for a defendant. When one spouse files for divorce, his/her spouse is automatically found “guilty” of irreconcilable differences and is not allowed a defense.

Ohio has an unusual set of divorce laws. There are several “fault” grounds still on the books but there are also two “no-fault” grounds. “Living separate and apart for one year” — essentially legalized desertion — can get one spouse the desired “no-fault” divorce.

Ohio’s confusing mix of divorce laws are a product of two different mind-sets. When these laws were re-codified in 1974, “conservatives” wanted to maintain the older and stricter system of divorce, using the “old rules,” where the accused spouse had to be found guilty of serious misbehavior. The “liberals” — probably disguised as legal experts — persuaded the other legislators to add on the two new “no-fault” grounds for divorce. But, in the process, the statute construction was badly botched. The office of Rep. Michael Gilb, R-Findlay, has suggested that his committee will be looking into this problem this year.

No-fault made its official debut in California in 1969, but there was work going on nationally to disseminate this concept nationally. In 1969 a national lawyers’ group began the work of designing a “model” divorce law, using California’s new law model. What these lawyers wanted to do was “unify” state laws to keep unhappy spouses from jumping state lines to access speedier divorces in another jurisdiction. Nevada gained a reputation as a divorce mill, but Alabama (the state that Judge Roy Moore made famous because of his demand to bring God’s laws into the courthouse) was another infamous divorce mill. In the ’60s, an unhappy spouse living outside Alabama could get a divorce the same day he/she showed up by first making arrangements with a lawyer who agreed to vouch for the spouse (perjure himself) that he/she was a “bona fide resident” of Alabama. “Migratory divorce” was a risky practice that was verging on scandal that might smear the reputation of judges and lawyers who colluded in this process. As for lawyers who practiced in states with tougher laws — like Ohio — they faced a loss of potential revenue.

Once again, “marriage” is all over the news. President Bush has made it part of his platform. In his State of the Union speech, he said, “A strong America must also value the institution of marriage” and “Our nation must defend the sanctity of marriage.”

His words are important but, at this time, they only focus on the administration’s concern over same-sex marriage — not what was done when no-fault pulled the foundation out from under marriage.

Some of us hope this new focus on marriage will allow a broader discussion about the other ways we might “defend the sanctity of marriage.” We, once again, need to allow both partners access to a fair process. And, we need to have that process overseen by those who “value the institution of marriage.”

At this time, our laws do not allow a fair process, and the process is overseen by legal experts who have no training as relationship experts. When we let lawyers design and handle the rules for “relationship surgery” (divorce), we might as well let engineers design both the machinery and the procedures for life-threatening injuries in the hospital emergency room.

Judy Parejko, author of “Stolen Vows: The Illusion of No-Fault Divorce and the Rise of the American Divorce Industry”, grew up in Dayton but now lives in Wisconsin. Her e-mail address is jparejko@juno.com.