Dissolving a Marriage: Divorce

• Pages: 85-113
• Author: Walter Wadlington,Raymond C. O'Brien,Robin Fretwell Wilson

85

Chapter 5

DISSOLVING A MARRIAGE: DIVORCE

I. The Perspective of History

On August 13, 2010, the gove rnor of New York signed into law

a bill that made unilateral no-fault divorce available in the State of

New York. The legi slation provides that if one of the p arties swears

under oath that the marital relationship is irretriev ably broken for

at least six months, a state court may dissolve the marriage, as long

as all economic and minor child custody issues are resolved.

1

Until

2010, couples choosing to divorce in Ne w York had to establish fault

grounds—desertion, cruelty, or adultery—immune from any

applicable common law defenses, in order to seek a unilateral divorce

in New York. In add ition to a fault divorce, couples could live

separate and apart for a period of one or more ye ars under a mutual

notarized written agreement. The mutual agreement of the parties

and their performance of all terms and conditions contained in the

agreement permitted a New York court to dissolve their marriage.

Nonetheless, forcing two married persons, already in marital discord,

to execute a mutual agreement—and then abide by its terms for at

least a year—rendered divorce in New York cumbersome and

inattentive to what occurred in other states. The 2010 New York

legislation perm itting unilateral divorce provided citizens with the

ability to dissolve a marriage unilaterally w ithout recourse to the

fault of either of the parties, the necessity of having an innocent

spouse to bring the suit, and the contentious litigation that is

attendant to establishing fault. New York joined the other states.

California was the first state to enact no-fault divorce in 1969.

Its example was quickly followed by other states. Chapter 1 discussed

the societal evolution that occurred in the United States during the

1960s and 1970s. California’s adoption of no-fault divorce is one

element illustrating this evolution. Today all s tates permit no -fault

divorce, but some states co ntinue to permit fault divorce in parallel.

Fault divorce is often used in tandem with unequal division of

marital property or spousal suppo rt to compensate a spo use for the

other spouse’s destruction of the marriage. Commentators continue

to debate using fault in this manner, but it remains within the laws

of many states.

If a spouse dislikes the divo rce process in hi s or her state, that

spouse may travel to another state or even to a foreign country to

1

N.Y. DOM. REL. LAW § 170(7) (McKinney 2024).

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DISSOLVING A MARRIAGE: DIVORCE

Ch. 5

petition a court there for a divorce. For such a divorce to be valid, the

petitioning party must establish jurisdiction, adequately notify the

other party, and meet the requirements of the state or nation issuing

the divorce decree. Then, if a properly obtained decree of divorce is

awarded to either of the spouses in a domestic state court, the decree

is entitled to Full Faith and Credit in any other states. If a fore ign

nation awards the decree of divorce, it may be awarded comity in

other states, as Full Faith and Credit is not available to foreign

judgements.

The dissolution of a marriage in twenty-first century America is

very different from the process that existed whe n America declared

independence from England. During the colonial period divorce was

very rare , as it was in England. After the revolution, courts,

especially in the northern states, permitted divor ce under defined

circumstances and it was thereby acknowledged that marriage could

be dissolved. The early cases involved an innocent spouse petitioning

a court for dissolution of his or her marriage as a result of a fault that

went to the heart of the marriage. Relying upon evolving common

law grounds, the petitioner had to prove that the other party was at

fault because of cruelty, adultery, or desertion for at least one year

without provocation. Later, legislatures accepted these common law

faults and added additional grounds, such as habitual drunkenness,

felony conviction of the other spouse, willful neglect of the petitioner

in providing for the petitioner’s necessities of life, or—borrowing from

annulment grounds—impotency at the time of the marriage.

2

For

example, “[i]n Hawaii, leprosy was grounds for divorce; in Virginia,

if a husband discovered his wife had been a prostitute, he had the

right to get out of the marriage. Tennessee quite reasonably provided

that if one spouse tried to kill the other spouse ‘by poison or any other

means showing malice,’ the victim was entitled to a divorce.”

3

Any ground establishing fault had to be corroborated w ith

sufficient proof and the party against whom the allegation was made

could raise a series of defenses to bar the issuance of a divorce

decree.

4

Possible defenses included that the petitioner spouse was

equally g uilty of a marital fault (recrimination), had condoned the

fault that is the basis of the suit (condonation), or had connived to

trap the other spouse into committing the fault ( connivance).

Occasionally, co urts would deny the divorce petition becau se there

was evidence that the par ties colluded to bring about the ground, to

2

See, e.g., UTAH CODE ANN. § 30–3–1(3) (West 2024).

3

JOHN LANGBEIN, RENEE LERNER & BRUCE P. SMITH, HISTORY OF THE COMMON

LAW 920 (2009) (quoting Lawrence M. Friedman, A Dead Language: Divorce Law and

Practice Before No-Fault, 86 VA. L. REV. 1497, 1502 (2000) (citation omitted)).

4

See, e.g., Gilmer v. Gilmer, 297 So.3d 324, 334 (Miss. Ct. App. 2020) (witness

testimony corroborated the cruel and inhuman treatment of petitioner).