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THE DIRECTION OF DIVORCE REFORM IN CALIFORNIA: FROM FAULT TO NO-FAULT . . . AND BACK AGAIN? Prepared by Donna S. Hershkowitz and Drew R. Liebert Counsel, Assembly Judiciary Committee California State Legislature “The time has come to acknowledge that our present social and legal procedures for dealing with divorce are no longer adequate.” -- Governor Edmund G. Brown, Sr., 1966, explaining his support of no-fault divorce reforms.


Three years after Governor Brown urged reforming California’s fault-based divorce law, Governor Ronald Reagan signed the Family Law Act of 1969 into law, making California the first no-fault divorce state in the nation. Or, looked at by some in another way, “On September 5, 1969, with a stroke of his pen, California governor Ronald Reagan wiped out the moral basis for marriage in America.”1 Since California's historic divorce reform, every state has enacted some form of no-fault divorce. Nationally, there has been some movement in recent years to return to fault-based divorce, or to at least impose additional obstacles to getting a divorce or to getting married. This movement was spurred by what has been seen as increasingly high divorce rates, the high rate of poverty in single-parent homes, and perceptions that the real “victims” of no-fault have been the children of divorce. The movement to restore fault divorce, or move in that direction, is guided by the hope that the imposition of obstacles to getting divorced will remove the “easy out” reformers say no-fault has provided. In the absence of no-fault, reformers continue, couples will be forced to work through their problems and the end result will be increased numbers of families remaining intact, and healthier more stable children. Others disagree, however, contending that the return to fault-based divorce will bring with it greater numbers of families who are physically separated without being legally divorced, fewer marriages, and an increased number of women and children living in violence and living with high levels of conflict. One judge in Australia posed an interesting solution to what he saw as the growing divorce problem. According to one tabloid newspaper, an Australian judge ordered a couple who went to court seeking a divorce “after four long years of bickering and battering . . . to 2
forget about the divorce, to go home arm in arm, and to make mad, passionate love every day for the next six months.” The judge told the couple that if they followed his advice to the letter, and still wanted the divorce in six months, he would grant it. According to the caption on the picture accompanying the story, “Loving couple Dustin and Angela Womack may call off their divorce after months of making whoopee.” 2 But that unusual “solution” aside, critics have blamed no-fault divorce laws for many of the serious ills of society, including: increased child poverty, high school drop-out rates, teenage pregnancy, low birthweights, greater welfare dependence, and juvenile crime. Studies have indeed shown that such ills are more prevalent in single-parent homes, and the rise of no-fault divorce has led to an increase in the number of single-parent homes. But is no-fault divorce really to blame, or are other larger forces at the root of these challenging societal ills? Some place the blame squarely on no-fault. But others point to studies which show that single-parent homes are substantially poorer than two parent homes, and poverty, rather than divorce law, is what can be blamed for these problems.
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