Today I was reminded of the earliest days of my practice, by a blog of a South Carolina lawyer:
Although I never handled a divorce under the law before no fault, I remember sitting in the presiding department years ago, waiting for my case to be assigned out for trial. Â In those days the presiding judge heard "default divorces," those where only one side appeared. Â To the witness stand paraded a woman followed by her "witness." Their job was to testify about the husband's adultery. Â The wife then asked the court to adopt a marital settlement agreement the parties had signed. Â
I had studied family law in law school, but this was a surprising reality. Â Unless the wife and a witness presented evidence of fault, the parties couldn't get a divorce. Â The parties often negotiated who would take the blame and the other would go to court to tell a story, true or false, bringing along a willing friend.
California didn't have a separation provision for no fault divorces in those days, but as I recall abandonment was considered "fault", to justify the granting of a divorce to the abandoned party.
When the judge found fault, assets could be divided unequally. Â Imagine how important it was to prove you were the wronged party in the breakup. Â This caused many legal battles over who was to blame for the breakup, fighting over the nastiest of personal business.
While the decision to eliminate fault as a basis for divorce has been criticized as leading to the breakup of marriages, the alternative results in trials over who is to blame for the failure of marriages. Â One side says "abandonment" and the other claims "mental cruelty" and the judge never knows the reality.
Having spent 3 decades practicing in a no-fault state, it is clear that courts are not a good place to decide whom to blame for marital breakups. Â And we certainly do not need to return to the days when dirty linen was brought up to gain an advantage in the division of property - we have enough with the remaining issues.
