Divorce American Style

Abstract

The canon-law heritage of American divorce law resulted, in the nineteenth century, in a divorce law that necessitated pretense and perpetuated hypocrisy. Lawyers, courts, and the public paid lip-service to the rules, but institutionalized the processes of divorce. Two myths were the basis of the divorce, namely, that divorce should only be granted to an innocent and injured spouse and that a divorce action must take place in an adversary setting. This was circumvented by a variety of techniques, and for the most part, in reality, there was divorce by consent. After World War II, changes in the law of divorce were marked by an expansion of grounds and the contraction of defenses. Furthermore, collateral attacks upon divorce decrees were increasingly restricted by Supreme Court decisions, and non-fault-grounds supplemented the traditional fault-grounds for divorce. Current pressures for reform may be observed in the growth of family courts and counseling services; in the development of theories, such as the "irretrievable breakdown" of marriage, to be used for divorce in lieu of all fault-grounds; in a modification of the "breakdown" theory which would be proved by the proof of the existence of traditional grounds; and by the addition of non-fault-grounds to existing grounds.