On Abolition of Grounds for Divorce: A Model Statute & Commentary

Abstract

Hardly a legislative session in any state goes by without a proposal to reform admittedly archaic divorce laws. We offer here the working draft of a statute with commentary, which we immodestly call a "model" and which we hope may ease the task of legislatures concerned with divorce "reform." We propose that the existing "fault" system, whereby one spouse must prove the "misconduct" of the other to obtain or prevent a divorce, be abolished. The statute deals primarily with the process by which spouses may change their legal status from married to single. Although we offer a policy position and procedure which should facilitate a more precise identification of the problems for decisions concerned with child disposition and finances we do not define standards for their resolution. The concepts of "grounds for divorce" and "fault" are sufficiently complex by themselves to warrant separate treatment in a statutory proposal. Furthermore the analytic separability of the process for determining the status of the parties from the processes for resolving issues of finance and child custody is recognized both by the so-called "divisible divorce" doctrine and by the courts' traditional jurisdiction to determine and redetermine those issues before and even after divorce is decreed.