IVANA COMES UP TRUMPS IN DIVORCE

NO-FAULT DIVORCE

In the United States, divorce laws are of the “no-fault” variety – for the moment. This means that the Law does not wish to seek a ‘guilty party’, but is concerned with reaching an equitable agreement, as hastily as is prudent. The reason for the change was because under the previous dispensation, parties wishing to end a marriage were often forced to feign adultery or lie in court in order to get a judge to grant the divorce. Because couples were resorting to perjury in court, which made a mockery of the judicial system, a new system of divorce was devised that made it possible for a divorce to be granted on the basis of “irreconcilable differences”.

Under no-fault divorce laws, no specific grounds for divorce need to be given by the party seeking to get the marriage terminated. This has implications for both parties, but the spouse who has not applied for the divorce is often most negatively affected by the decision. The law makes it very simple for marriages to be hastily dissolved without a period of separation or mediation required to try to ‘save‘ the marriage. ‘Irreconcilable differences’ refers to a situation in which one or both parties decide that divorce is the best solution to a situation in which spousal differences make continuing in the marriage impractical. For the spouse who is being petitioned to divorce, there is no recourse to counter the petition, and he or she is forced to go through with the divorce, regardless of the circumstances. The law is gender blind and assets are divided equally, regardless of who is ‘at fault’ in the marriage, unless prenuptial agreements exist. In the case of an unforeseen petition, the respondent is disadvantaged, since his or her life may be disrupted without recourse to counter the decision. Criticism of female petitioners in no-fault divorce is that custody is most often granted to mothers, who then stand to benefit from the divorce since the respondent husband is legally bound to provide child support and alimony even though he did not preempt the divorce, and may not be to blame.

However, if the husband, on the other hand, is at fault in the marriage, the wife is advantaged in the no-fault system. In the case of men being the petitioners, women are often at a financial disadvantage and may not have access to the legal advice their more astute husbands do. Because women are most often granted custody of children in divorce, their incomes – which are generally lower than men’s - may become further diminished. And along with being a single mother, comes the added responsibility of performing the role of two parents, while their husbands’ freedom generally increases, along with their income. However, any form of divorce may lead to this scenario. The most positive aspect of no-fault divorce, from a feminist perspective, is that women are able to get out of an abusive marriage with the least possible delays.

FAULT DIVORCE

Fault divorce, is in many ways the opposite of no-fault divorce. As the name suggests, fault divorce requires that one of the spouses pleads to be at fault for the breakdown of the marriage. Even in the case of mutual consent to divorce, someone still has to claim guilt in order for a judge to grant divorce. In the United States, fault divorce was replaced by no-fault divorce, specifically because of the procedural difficulty with getting one of the spouses to agree to guilt, and as described before, the endorsement of perjury. The waiting time is longer, with a period of separation and mediation required for the divorce to be conceded. The only benefit from a long wait is that the couple may decide to give the marriage a chance, and try to work out their differences. Or not!

WHOSE FAULT?

In the United States, grounds for fault divorce include:

·        adultery

·        desertion

·        abuse

·        imprisonment

The biggest concern with fault divorce from a feminist viewpoint, is that possessions are divided in favour of the ‘innocent’ party. This means that in the event that her husband has access to unscrupulous legal council, a wife could be made to appear guilty, and walk away from the marriage with considerably less than what she is perhaps due. Since women often revert to becoming housewives while looking after their young children, and since they generally put their own careers on hold in order to raise children and support their husbands in their educational and vocational advancement, women are most often left in dire financial circumstances. In the case of abusive relationships, because divorce takes long to be finalised, women and children may be put at undue risk. This says a lot about the social responsibility of the Law in the United States. It seems as though, regardless of extenuating circumstances, as long as someone is shown to be at fault, justice is served. This type of divorce is definitely male-biased, and leaves women with bleak outcomes after divorce.

HAPPILY DIVORCED