This paper addresses three core issues in American family law: the contradictions embedded in no-fault divorce procedures, the advantages and disadvantages of custody presumptions for mothers and fathers, and competing approaches to marital property division. The paper argues that procedural obstacles in no-fault divorce undermine the law's original intent, that the tender years doctrine and best-interests standard create blanket assumptions that may disadvantage fathers and harm children, and that the Uniform Marriage and Divorce Act offers a more flexible and equitable framework for property distribution than standard equitable distribution approaches.
Strictly fault-based divorce has given way to no-fault divorce in the vast majority of states. Yet, even under no-fault divorce, states require couples to navigate many procedural requirements before a court will grant a divorce decree. Many of these obstacles are intended to encourage reconciliation — for example, the requirement that a court find irreconcilable differences before granting a divorce. The question is whether such requirements make sense, or whether the court should simply permit people who no longer wish to be married to obtain a divorce.
Requiring couples to overcome numerous obstacles in order to obtain a no-fault divorce is contradictory. No-fault divorce laws were originally intended to prevent a spouse from fabricating misconduct accusations simply to escape a marriage. Prior to these laws being enacted during the late 1960s and early 1970s, many people engaged in what would amount to fraud: one party in the marriage would seek a divorce even though their spouse had done nothing abusive or otherwise legally sufficient to warrant a dissolution. Rather than acknowledging the real reason — that they simply no longer wished to remain married — they would deceive the legal system by falsely claiming their spouse was abusive in some way (Wilcox, 2009, pp. 81–94).
A well-known historical example of pre-reform fault-based divorce involves actress Jane Wyman, who sought a divorce from Ronald Reagan in 1948. Despite the fact that Reagan was never abusive toward her, Wyman claimed he had engaged in mental cruelty throughout their marriage. This claim was not grounded in fact; rather, Wyman simply no longer wished to remain in the marriage. Under the law at the time, she was required to provide some legally recognized reason for seeking a divorce, which led her to allege mental abuse in order to satisfy that requirement.
Once no-fault divorce was introduced, it was designed to allow either party to exit a marriage simply because they no longer wished to remain in it. However, the problem with some state laws is that they impose various procedural obstacles that work against this intent. In effect, such requirements have become a backdoor effort to discourage divorce. As a result, courts should grant a divorce to individuals who no longer wish to remain married, in keeping with the original purpose of no-fault divorce law (Wilcox, 2009, pp. 81–94).
Under the best interests of the child standard and the tender years doctrine, most states assume that the mother is the most suitable choice for raising children. This gives mothers a significant advantage, as courts will automatically favor them in the majority of child custody decisions. The primary disadvantage of this approach is that courts may not look closely enough at other circumstances that could affect a parent's suitability. For example, there may be no provable formal accusations against the mother, yet the court may fail to investigate other factors that could affect the child's wellbeing — such as whether the mother is verbally abusive or is misrepresenting facts. This is problematic because it means children could be placed in the custody of a dysfunctional parent without the court being aware of what is actually happening (Weiner, 2003, p. 183).
In the case of the father, the advantage of these legal standards is that the court focuses on what is most stable for the child. The assumption is that the mother will have a special bond with the child and may be better positioned to look out for the child's best interests. However, the disadvantage is that the father may, in a given case, be more emotionally and financially stable than the mother. By defaulting to the assumption that the mother is the best parent to raise the child, the court may overlook a father who is in fact more capable of providing the most stable and supportive environment.
These concerns illustrate how the tender years doctrine and the best interests standard can rely on blanket assumptions that one parent is inherently more suitable than the other, without examining the specific circumstances of each individual case. This risks the court inadvertently favoring one parent over the other in ways that may not serve the child's actual wellbeing (Weiner, 2003, p. 183).
"Disadvantages fathers face under custody presumptions"
"UMDA's flexibility versus standard equitable distribution"
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