Marriage as Contract, Opportunistic Violence, and Other Bad Arguments for Fault Divorce
Ira Mark Ellman & Sharon Lohr | 1997 U. Ill. L. Rev.
The concept of no-fault divorce, which has gained acceptance in one form or another in all states today, recently has come under attack by scholars and legislators who blame no-fault divorce for various societal ills. One study, published by Professors Brinig and Crafton in 1994, actually links the advent of no-fault divorce to an increase in spousal violence. Professors Ellman and Lohr respond in this article to the recent barrage of no-fault criticism, with particular emphasis on their disagreement with the findings of Brinig and Crafton.
The authors begin with an overview of the various arguments made against no-fault divorce and why these arguments are unpersuasive. The authors then critique the marriage-as-contract theory on which Brinig and Crafton's study is based, refuting Brinig and Crafton's hypothesis that reintroducing fault into divorce will help improve marital conduct. The focus of the article then shifts to the empirical findings of Brinig and Crafton, which purport to show that no-fault divorce has caused an increase in domestic violence. Professors Ellman and Lohr analyze the methodology and conclusions of Brinig and Crafton's study, arguing that the analysis is flawed and the results meaningless.
Professors Ellman and Lohr conclude that although reducing the incidence of divorce and domestic violence in our society are both laudable goals, abandoning no-fault divorce is not an effective means of achieving them.
* Professor, College of Law, Arizona State University. B.A. 1967, Reed College; M.A. 1969, University of Illinois; J.D. 1973, University of California (Berkeley). Professor Ellman is Chief Reporter for the American Law Institute's project Principles of the Law of Family Dissolution: Analysis and Recommendations.
I would like to express my pleasure at being able to participate in this symposium in honor of Harry Krause. When I first began teaching and was asked by my new school to undertake family law, I asked a friend experienced in that field what book I should use. She unhesitatingly recommend Krause's Cases and Materials on Family Law, then in its first edition. I adopted it and before my first class made several calls to Harry to seek his help, which he graciously provided although he hardly knew who I was. So Harry was, quite literally, my family law mentor. But the greatest favor Harry did me was yet to come. After using his book for several years, I found I had developed some extensive supplemental materials, as well as a different way of organizing the chapters. I boldly sent the material and my syllabus to Harry, in the hope that he would like my ideas and take me on in preparation of the second edition. But always the iconoclast, Harry of course turned me down, observing, when I tried to suggest the virtues of my reorganization, that such differing views were, of course, the problem with taking on a coauthor. Harry proceeded to the preparation of his second, and later, third, editions, entirely on his own, and of course they continue to own an important slice of the field. But emboldened by the experience, I eventually went on to turn that syllabus and those materials into my own family law casebook. Thus, although Harry never become my coauthor, there is a sense in which he was the godfather of my own casebook.
** Associate Professor of Statistics, Department of Mathematics, Arizona State University. B.S. 1982, Calvin College; Ph.D. 1987, University of Wisconsin-Madison.
Both authors would like to express their appreciation to Margaret Brinig, whose cooperation in providing us with explanations of her methodology and copies of her data, was a model of professional courtesy and responsibility. Our strong disagreement with her conclusions and our doubts about the validity of her empirical claims are of course offered only with the purpose of furthering the analysis of important policy issues in divorce law, a goal which we know Professor Brinig shares and to which her work has contributed. We benefitted in this work from Ira Ellman's conversations with Frank Zimring and from William Nelson's invaluable help in providing us with the data on spousal murder presented in part II--neither of which would have occurred but for the summer hospitality repeatedly extended to Ira Ellman by Boalt Hall and by the Earl Warren Institute of which Professor Zimring is Director. The authors are also grateful for the comments received on earlier drafts provided by Scott Altman, Susan Appleton, David Kaye, and Steve Sugarman, and for the research assistance of Jenny Clevinger. Ira Ellman wishes to acknowledge the summer research support provided by the Arizona State University College of Law.