Report and Recommendation of the Louisiana State Law Institute to the House Civil Law and Procedure Committee of the Louisiana Legislature Relative to the Reinstatement of Fault as a Prerequisite to a Divorce

AuthorKenneth Rigby
PositionAttorney at Law, Shreveport, Louisiana
Pages561-614

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Attorney at Law, Shreveport, Louisiana; Adjunct Professor, Paul M. Hebert Law Center; Member of Persons Committee and Council, Louisiana State Law Institute.

I The Task

In 1998, the Louisiana Legislature urged and requested the Louisiana State Law Institute ("Law Institute") to study and make recommendations to the House Civil Law and Procedure Committee as to the merits of reinstating fault as a prerequisite to a divorce in Louisiana.1

II Purpose Of Proposal

The first step in recommending whether fault should be reinstated as a prerequisite to a divorce is to define the purpose of the proposal. Several purposes suggest themselves:

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  1. To discourage hasty or ill-thought-out marriages;

  2. To preserve the quality of marriage;

  3. To preserve the longevity of marriage;

  4. To preserve marriage as a socially desirable societal institution;

  5. To provide an occasion for catharsis or an emotional therapeutic opportunity in the divorcing process;

  6. To provide an opportunity for a wronged spouse to formally and publicly document the nature and extent of the claimed wrong by the other spouse, and to obtain a judicial confirmation of it;

  7. To provide a mechanism for the formal judging of the acts of the spouses during marriage, with the resulting punitive and vindication consequences;

  8. To discourage divorce by making the process of obtaining a divorce more difficult, more unpleasant, more expensive, and more revealing of a person's foibles, weaknesses and other shortcomings.

Although this Report discusses other possible purposes, the Law Institute assumes that the purposes of divorce reform should be (1) to discourage hasty or ill-thought-out marriage, (2) to preserve the quality of marriage, (3) to preserve the longevity of marriage, and (4) to preserve marriage as a socially desirable societal institution.

III Statistical Data-Is Marriage In Louisiana In Trouble?

The answer to this question is subjective, but the statistical data concerning divorce supplies an objective view of what has happened to marriage both nationally and in Louisiana.

The following national and Louisiana data and long term trends were reported by a social scientist in January, 1982:2

A The Divorce Rate

Divorce was a rare phenomenon during the Colonial period. In fact, until the turn of the Civil War, divorce was not considered important enough to warrant statistical recording. In the mid-1800s, however, due to attempts to Page 563 establish equal rights for women, divorce laws were liberalized and "by the 1860s various groups, fearful that family values were being undermined, demanded that national divorce figures be tabulated." Divorce statistics first begun to be collected in 1867. In that year, the total number of divorces was 9,937 or about 0.3 divorces per 1,000 population. One hundred years later in 1967, the number increased to over one- half million, or about 4.2 divorces per 1,000 population. At the present time (1982), the divorce rate is approximately 5.4 divorces per 1,000 population.

* * * *

For the sixty years following 1867, the divorce rate increased consistently-rising about 75 per cent every twenty years. Had this pattern continued, the divorce rate in 1947 would have been 2.8. However, a steep rise occurred in the 1940s. The United States was at war and in the midst of a number of upheavals and uncertainties. There was a sharp increase in the number of marriages-particularly "quickie marriages." As the war came to an end, many of these marriages also ended. Thus, in 1946, the divorce rate rose to an all-time high of 4.3 divorces per 1,000 population. Almost as suddenly, the rate dropped and leveled off during the 1950s, remaining at about 2.1 to 2.3 until 1963. In that year the rate began to climb and within ten years it had almost doubled, exceeding the 1946 figure. In 1973 the rate was 4.4 and by 1975 it had reached 4.9. In 1976 and 1977 the rate remained the same at 5.0. As Scanzoni states "this was the first time in a decade that the rate had not climbed from one year to the next, and it may signal a slowdown of the spectacular rate increases that had been taking place previously." Many demographers and authorities on marriage and divorce state that, during the next decade or two, "the odds seem to favor some continuation of the current slow rise in the divorce rate, with the trend broken periodically by a year or more of stability or decline."

The crude divorce rate (number of divorces per 1,000 population) is not the most accurate way to determine the divorce picture. A more meaningful rate of divorce is the refined divorce rate (number of divorces per 1,000 married women). The refined divorce rate looks at the percentage of all existing marriages that break up in any one year. Thus in 1978, for example, there were over 1.1 million divorces among a total of 51.1 million married women or a rate of almost 22 divorces for every 1,000 marriages in existence that year.

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* * * *

The divorce rate in 1920 was 8 per 1,000 wives, and by the early 1940s it had risen to about 10 per 1,000 wives. During the 1950s it fell to under 10. Since the early 1960s the rate started rising and by the late 1960s, the rise began to increase sharply. From 1965 to 1975 the rate doubled and has continued to rise to the present. It is estimated that the 1982 rate will be 22 per 1,000 married women. Once again, as with the crude divorce rate, it appears to many authorities that the refined divorce rate will also level off during the next decade or two.

Based on this brief presentation, the following conclusions can be drawn concerning divorce in the United States:

(1) The divorce rate has steadily increased within the past fifteen years.

(2) More people are divorcing today than ever before.

(3) The divorce rate appears to be leveling off.

(4) It is estimated that roughly four out of every ten marriages made in recent years will end in divorce.

(5) The divorce rate is higher today than ever in the history of the United States.

(6) There are no indications that the divorce rate will drop to the 1950s level in the near future.

Although it is difficult due to incomplete data, a similar picture of divorce can be drawn for the State of Louisiana. Indeed, the trend in the divorce rate parallels rather closely the national trend.

* * * *

The divorce rate reached a high mark around 1947, then declined and leveled off during the 1950s and early 1960s. Starting around 1965 the rate began to increase and has continued to do so to the present. It appears to have leveled off at about 3.3 or 3.4 per 1,000 population. Although the state divorce rate is below the national level, basically the same conclusions can be drawn:

(1) The divorce rate has steadily increased within the past 15 years.

(2) More people are divorcing today than ever before. For example, there was a 12% increase in the number of divorces and annulments in Louisiana from 1975 to 1976.

(3) The divorce rate appears to be leveling off.

(4) It is estimated that there is approximately one divorce granted for every three marriages.

(5) The divorce rate is higher today than ever in the history of the state.

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(6) There are no indications that the divorce rate will drop to the 1950s level in the near future.3

More recent data, for the period 1980-1990, reveal the following statistics on divorce.4 The number of divorcing couples in the United States was 1,182,000 in 1990, the highest number since 1985 (1,190,000) but three percent lower than the peak number in 1981 (1,213,000). The divorce rate per 1,000 population for 1990 was 4.7, the same as in 1989, but eleven percent lower than the peak rate of 5.3 in 1979 and in 1981. Provisional data indicate that the rate remained steady at 4.7 in 1991, but increased slightly to 4.8 in 1992 before dropping to 4.6 in 1993.

Attached to this Report is a table that lists the number of divorces and annulments in the United States for each of the years 1940 through 1990 and shows the crude and refined rate per thousand for each of those years.5

Compared to 1980, the number of divorces in 1990 was lower in every region of the United States except the South.6 The number declined three percent in the Northeast, six percent in the Midwest, and two percent in the West. Divorces in the South were five percent higher than in 1980.7

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A concern is the impact of divorce on children. In 1980, the rate of children under 18 years of age involved in divorces was 17.3 per 1,000 children. In 1990, the rate was 16.8.8 Attached to this Report is a table that shows by percentage the number of children involved in divorce under the age of 18 years of age in each participating state in the years 1989 and 1990.9

Divorce is more frequent for men and women under the age of 40 than for older married couples.10 In 1990, the divorce rate for men increased from 32.8 per 1,000 married men 15-19 years of age to 50.2 per 1,000 for men 20-24 years and declined with increasing age to 2.1 for married men 65 years of age and older.11 A similar pattern exists for women.

Almost two-thirds of divorcing men and three-fourths of divorcing women were under 40 years of age.12 The modal group for men was 30-34 years of age (20.7 percent)13 and the modal group for women was 25-29 years of age (21.8 percent).14 Since the mid-1970s the age at divorce of men and women has shifted upward.15...

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