by Joseph Nicholson

Created on: April 20, 2009   Last Updated: April 21, 2009

Society and Divorce

How divorce is treated by the law is largely a reflection of social attitudes, which have changed dramatically over time. When divorces were first made widely available, the legal procedure retained the centuries old stigma of one spouse having to prove a fault in the other almost as if they were seeking conviction just to be released from the bonds of matrimony. During this period, stopping a divorce usually meant contesting the grounds on which it was filed. The remnants of this system still exist in state legal systems as what are known as "fault divorce."

Fault Divorce

Though now relatively uncommon, fault divorce still exists in some form in most states. The faults that count as grounds for divorce vary, but they're usually variations on a few basic concepts. Grounds for divorce usually include physical or psychological abuse, adultery, desertion, drug abuse, insanity, incarceration for serious crimes, and coercion or fraud in forming the marriage. If a divorce is made on the grounds of one of these faults, the spouse accused of the fault can stop the divorce by disproving the claim. The accused party, after being served with a petition for divorce, can answer by filing a motion to show cause and asking the court for a hearing on the fault. At the hearing, evidence of the fault will have to be presented, and the defense against the fault will depend on how it's defined in the state. Desertion, for example, usually has a specific time component, between six and twelve months, and a requirement of intent. A spouse accused of desertion then, could stop the divorce by showing the separation from their partner was beyond their control and not intended as abandonment. Similarly, an accusation of insanity, would require institutionalization or strong testimony from a professional, and not just the spouse's opinion. An accusation of adultery would also have to be supported by evidence, which the accused party could refute. If the judge deems the evidence to be unsatisfactory in proving the fault, the petition for a fault divorce would be denied and the divorce proceedings halted.

No-Fault Divorce

As divorce became more common, however, the law changed to suit the growing belief that no one should be chained to a marriage against their will. By the end of the twentieth-century, every state but New York offered no-fault divorce in which one spouse merely needs to petition the court for the divorce without proving a fault in their partner. Whether

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