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Traditional values and no-fault divorce

Written by Joseph A. Ranney, Attorney at Law
Phone: (608) 283-5612

When Wisconsin became a state in 1848, its divorce laws were liberal for the times but much stricter than today's laws. Divorce had been regarded as almost exclusively a man's right, in keeping with earlier notions that the husband's authority over the family should not be questioned. But by the 1840s there was growing concern about drunken husbands' abuse of their wives and children, and many new states including Wisconsin enacted liberal divorce laws to help women.

Nevertheless, 19th century society was not ready to make divorce easy or accept the idea that sometimes divorce is not due to failings by either spouse. Wisconsin was no exception: it allowed divorce only for "cruel and inhuman treatment," desertion, and several other narrow reasons.

In 1866 the Wisconsin Legislature allowed divorce after a voluntary separation of five years, thus making Wisconsin one of the first states to create a no-fault basis for divorce. But most people did not want to wait five years. Cruelty became the most common ground for divorce, mainly because many Wisconsin judges interpreted the term quite broadly.

As the 20th century advanced, the gap between the law and the reality of divorce widened. Making speeches in the Legislature about the evils of divorce was one thing; giving the same lecture in court to spouses who were desperately unhappy and sometimes in physical danger was another. A University of Wisconsin professor who investigated court practices in the 1930s found that most judges were reluctant to apply divorce laws strictly. "The efforts of the court were bent more in the direction of relaxing the law to aid the ... parties in accomplishing the desired objective than in the direction of strict application of relevant legal rules." The term "cruelty" had become "a catch-all for widely varied types of human behavior."

The concept of no-fault divorce was first developed in the late 1940s. Even though in reality many judges were already applying no-fault standards, many Wisconsinites believed that no-fault divorce was "anti-family" and would undermine the institution of marriage. The Catholic Church, working with the Council for Home and Family, led the opposition.

In the 1970s, divorce rates shot up dramatically in Wisconsin and throughout the United States. Why that happened is still being vigorously debated today, but it is clear that as a result of the increase public opinion shifted decisively in favor of a change in the law.

In 1977 the Legislature, led by Representative Mary Lou Munts of Madison, replaced the traditional divorce system with a no-fault system. Unlike many other states which enacted no-fault divorce, Wisconsin was careful to make sure that women and children would be protected as much as possible from the financial hardships of divorce. The Legislature also tried to minimize the conflict and stress associated with the process. Rather than leave child support awards up to judges, it set objective standards the courts were required to follow in most cases, and it also set detailed standards for awarding financial support to spouses.

The law made concessions to traditionalists by stating in its preamble that it was "not intended to make divorce easier to obtain," and by requiring couples to undergo counseling and try to reconcile before they divorced. Divorce is still a stressful, often expensive process in Wisconsin and probably always will be, but the new system eliminated the futile exercise of trying to assign blame and it took much waste and pain out of the process.

Note: The views expressed in this article are the author's alone. Distributed as a public service by the Wisconsin Supreme Court in honor of the state's sesquicentennial.

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