Here is my article in the November, 2009 La Crosse Magazine.

There was a time, not as long ago as you might think, when you couldn’t get a divorce.  Once you were married, you were stuck with your partner, for better of for worse. This is a short column, so I won’t get into all the reasons why divorce was restricted.  Suffice it to say, it was a bad time to be badly married. After centuries of couples enduring bad marriages, the pressure was pretty strong for change. And when it happened, it was dramatic. Think complete 180. Nowadays, instead of divorce being nearly impossible to get, all you have to do is want one. The legal term is “no fault divorce,” and it means you can get divorced if you want to, without giving any reason, even it your ex-to-be wants to keep trying.

So this sounds pretty good at first. No one should be forced to be in a relationship they aren’t happy with, right? Freedom, after all, is what America is about.

But there are downsides too. Most marriages have kids, and the near universal consensus is that divorce is bad for kids, emotionally and financially. Children of divorce are more likely to suffer in their schoolwork, have babies out of wedlock, live in poverty, and be incarcerated. Grim stuff. Divorce isn’t always good for the other spouse either, especially divorced women, who live in poverty in frightening numbers. The social and economic consequences of divorce are enormous. Some estimates state that over $100 billion in tax dollars are devoted to these issues.

On top of this, Wisconsin’s no fault rules have evolved from not just allowing no-reason divorce, but also no-blame property division. Lawyers argue vigorously that bad behavior during marriage – abuse, adultery, financial mismanagement, you name it – is irrelevant when determining the terms of the divorce settlement.  The law emphasizes equal division of property, which is not necessarily the same as fair division. While it is true that bitter fights over money and property won’t help mend a broken heart, too often equal division rewards the spouse who put in less effort or was less responsible in the marriage. Imagine a marriage where one spouse was hard working and the other ran up debts. In the divorce, the hardworking spouse gets half the debts, and the profligate spouse gets half the assets, and maybe some alimony. Or consider the marriage where one spouse has made significant sacrifices to support the other. Or one where one spouse has abused the other.  There is no question that the sacrificing or abused spouse loses in a 50-50 split, because that spouse almost always has a significantly limited future earning ability. An abused spouse usually hasn’t focused on her career, often because the abuser didn’t let her. Under the no fault system, though, as soon as you ask for additional compensation, you will be told that past abuse is not a factor in determining an equal division. But shouldn’t it be?

Some states are experimenting with modified no fault divorce rules that limit “walk-away” cases. Wisconsin is not one of them. The no fault idea has become so ingrained in Wisconsin’s legal community that there is strong resistance to unequal divorces, even when unequal means fair. The exceptions in the Wisconsin laws that allow for unequal distributions are as underused as the typical family’s treadmill. And trying to bring past behavior into the proceedings is frowned on, even though sometimes, to have a fair future, you have to look at the past.  Maybe Wisconsin should consider changes that rebalance some of the priorities in divorce? I’d like to hear your thoughts on the issue.

4 Responses to “The Case Against No Fault Divorce”

  1. petey2ruby says:

    First: a disclaimer… not all attornies are the same. Okay, now, how do we raise the bar (no pun intended)so we lay people don’t feel like we need to study statutes in order to feellike we’re getting the best protection our hired guns can give us? As far as Wisconsin marriage law goes, there are actually alot of laws to protect each party if they’re utilized as intended. However, the consequences for violating, say, the law regarding informing the other spouse before granting credit is weak. “In the best interest of the family”? When you gave him a loan 2 months after he ran away? Did you even verify his address? Disseminate information and make a splash with a big case so it makes the press.If one, then two, lawyers work a little harder, then they will all have to work harder.

  2. BadgerLawyer says:

    I agree with you wholeheartedly that if a few lawyers work harder it puts pressure on the rest to do so to. You are also right that there are many laws that can protect both parties .. it is getting them used as intended that proves problematic. You have to find a lawyer who is clever and assertive and willing to go out on a limb. As you imply, that’s harder than it looks.


  3. petey2ruby says:

    Ther are some of us who would be willing to changelaws. Where do we start? Who do we contact?

  4. BadgerLawyer says:

    Getting a law changed can be an arduous process — you remember the Saturday morning cartoon: “I’m just a bill.” The first step is to find like minded people and form a group that shares your views. Facebook and other social networking media can be a big help here. Then draft some proposed legislation. It doesn’t have to be legalese, but it should contain a statement of the ideas or concepts that you think should be put into place. Once you are organized and have a legislative goal, then you want to start lobbying — which just means contacting the appropriate legislator(s). In family law matters, your state legislator would be the person you want. The bigger your group, the more impact you will have with legislators.

    Here are a couple links that might help you get started: