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Despite the fact that most states have passed no fault divorce laws, fault and blame continue to play a large role in the ways that divorces develop. As I have noted before on this blog very few divorces ever go to trial in which a judge makes the decisions and even has the opportunity to apply marital misconduct as a factor in the judgment. And even in the one percent of cases that do go to trial few states even permit a judge to use fault as a criteria in deciding custody or distribution of property. A few states permit the judge to consider marital misconduct in awarding alimony but most judges are reluctant to do so. And because almost 99% of cases are resolved by negotiated settlement, issues of fault play a negligible role at best in negotiations.
So from a practical perspective, who is at fault for the demise of the marriage is of practically no importance in shaping the outcome of divorces. If fault plays such a small part in the outcomes why does it loom so large in the interplay of the couple during the divorce? There are several reasons I have observed over the years. When misfortune strikes most of us want to know why. Illness, hurricanes and other natural disasters are obviously no-one's fault and simply have to be endured without whatever satisfaction comes from having someone to blame. But the failures of human relationships are much more complex.
Divorce is about the failure of a relationship in which at least one partner but usually both are disappointed in the behavior of the other. He turned out to be lazy and never earned a good living. She was a profligate spender and always kept them mired in debt. He was insensitive to her feelings and left her feeling emotionally lonely. She was slovenly and kept the house like a pig sty or she gained fifty pounds and ceased to be sexually attractive to him. The list is endless and over thirty years I have heard many hundreds of such complaints. Usually, there is some element of accuracy in each of the complaints. She did run up the credit cards. He did have less ambition that most other men. She did gain fifty pounds. But none of these things by themselves caused the divorce. Couples who have mastered dispute resolution techniques can often solve their problems.
With communication, support and empathy she might have been induced to lose the added weight. With sufficient support and understanding he might have been induced to understand why his lack of drive was holding him back. With adequate credit counseling and support she could have learned to budget. So few of the "blame" reasons people offer for the divorce are, by themselves, an adequate explanation for the failure of the marriage. Most divorces are the product of a hundred small wounds, sins of omission and commission and failure to care for and feed the relationship. Marriages don't end suddenly; they erode over time. Nevertheless, it is common for people to seize on one or two actions or character flaws of their mates in explaining the divorce.
What purposes are served when they do this? First, few people are prepared to accept responsibility for their own contributions to the failure of the marriage. It is easier and more comfortable if the failure was caused by him rather than me. I can minimize my own guilt by explaining the divorce in terms of the other's defects and I can explain the divorce to others more comfortably by showing how it was all her fault and that no reasonable person could be expected to live with such a harridan. It is generally easier to garner sympathy from friends and family that way. When was the last time you heard someone say, "I think most of the blame for the divorce is mine because I was too selfish to pay attention to her when she needed me." Or have you ever heard anyone say, "I stopped paying attention to him when the children were born. I expected him to support me but I really didn't meet any of his needs when he came home exhausted from work." A second and related reason for such self serving denial is that it helps justify your demands that the other suffer a disproportionate amount of the inevitable dislocation of divorce. Ultimately, divorce is about change and for all but the wealthy that change generally requires a lot of belt tightening.If the divorce is his fault why should I suffer? Let him live on less and let me and the children continue our lives unchanged. If the divorce is caused by her and she wants to leave me let her move out of the house and let me continue my life unchanged. Although such arguments seldom convince the other, they frequently serve as a justification to fight for more than your share. And of course the adversary legal system is constructed to exploit precisely this type of faulty reasoning. If he won't agree to my terms we'll let the judge decide.
Of course the judge seldom gets to decide but few clients know that. I have long referred to divorce mediation as "divorce for grownups." Good mediators don't let clients dwell for very long on whose fault caused the divorce. They refocus the couple on the future and try to help them share scarce resources in a fashion that best serves all family members. The clients who have the most trouble in mediation are those who can't accept responsibility and can only reside in a world in which they are right and others are wrong. They are condemned to bad divorces and poor post-divorce adjustment.
