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Is Your Love Worth $9 Million?

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5 Responses

  1. dave hoffman says:

    “[O]n the ground that a spouse’s affections cannot be stolen and that one person is never the sole cause of marital breakdown.”

    Is this an empirical claim? Or a normative one?

  2. Solangel says:

    No one has tested the claim empirically and I’m not sure that it can be. After all, who knows what causes marital breakdown? However, this is the policy underlying no-fault divorce. The law treats both spouses as equally blameworthy or equally blameless even if one spouse was unfaithful or abusive. Some courts have suggested that if your marriage is strong, a third party would not be able to steal your spouse’s affections. If your marriage was already on the rocks when the third party intervened, can we really say that the third party is the cause of the marital breakdown or alienated your spouse’s affections?

  3. dave hoffman says:

    Yes, but (1) maybe no-fault is not grounded in empirical fact but rather countervailing policy considerations, among them in part that the tort regime remains as a way to deal with the evident harm caused by adultery; (2) there’s no reason for this assumption of non-causality to be uniform from an area of the law skewed (warped?) by custodial issues to be imported to one largely revolving around deterrence; (3) the evident failure of the law to permit the non-adulterous spouse to give voice to her or his moral outrage is a failure of the divorce regime. It’s that failure that is driving plaintiffs to bring what – as you assert – are economically “wasteful” suits. Perhaps so! But aren’t almost all lawsuits between civilians economically a terrible idea? Breaches of contract should go unremarked, because lawyers will eat up the surplus; property invasions forgiven, as the judge will extract his rents.

  4. dave hoffman says:

    You are of course right, though, that lawsuits grounded in adultery must (to succeed) have a vision of “fault” that is mildly – but not exceptionally -narrow.

  5. Solangel says:

    Dave,

    I agree with you that the reasons we moved to a no-fault system is not grounded in empirical fact. Reformers believed that fault based divorce encouraged acrimony and that eliminating fault would reduce the bitterness of divorce. As a number of scholars have pointed out, this was naive or wishful thinking. No-fault divorce hasn’t really made divorces any less acrimonious. Since they can no longer allege fault, couples now fight over custody and property. As I pointed out in a 2008 article, “no fault divorces are sometimes more acrimonious [than fault-based divorce] because they fail to provide a betrayed or abused spouse with a venue where he can express his anger, indignation, and desire for revenge.”

    I don’t know if divorce reformers saw the tort regime as a way to deal with the harm of adultery, but many courts have cited no-fault divorce as a reason to abolish the heart balm torts. These courts have reasoned that the legislature would not have abolished fault and still intend to allow spouses to “punish” their spouse through the tort system.