I recently found myself debating a group of younger folks about the merits and negative aspects of no-fault divorce law. We were comparing the differences between today’s divorce laws and contract law. I was the only debate participant who had been married and through the divorce process.
We were debating why marriage is less enforceable and less consequential than an ordinary business contract. I didn’t find it surprising that the word, “love” came up quite often when discussing the issue of one party leaving a marriage. What lacked understanding was this, at the end of a marriage, the reason you married (love) has litle to do with the problem at hand.
Sure, neither fault or no-fault divorce laws are going to make someone who no longer loves you fall back in love with you but the kind of laws that govern the dissolution of a marriage will determine whether or not someone walks away financially damaged or not.
I’m of the opinion that if a person needs to “go find themselves” they should be free to do so but only after counseling which should be required by law and a mandatory waiting period before filing for a divorce. And, leaving should not leave the other party to the marriage financially damaged or destitute.
Comparing No-Fault Divorce Laws and Contract Law:
No-Fault Divorce Laws:
Under no-fault divorce laws the marriage contract can be ended by either party who decides to leave the marriage. There need be no “fault” only “irreconcilable difference” and one can file for a divorce.
It sounds good until you consider some of the following issues with no-fault divorce laws:
- The majority of divorces are unilateral. That leaves one spouse wanting the marriage and the benefits that came along with being married. Under no-fault divorce laws that spouse has no legal defense against the other spouse.
- Under no-fault divorce laws the spouse who earns the least ends up leaving the marriage with the least. If a wife who has stayed home to raise the children and help promote her husband’s career is left, she is left with very little.
- If a father who loves his children, has worked to provide for them and build a family is left by a cheating or "unhappy" wife, he stands to lose custody of his children. Under no-fault divorce laws a wife who cheats is not held responsible for breaking up the family. The father bares the responsibility for her leaving by usually becoming a visitor in his children’s lives.
Legally Binding Contract:
A contract is a promise between two or more persons in exchange for goods or services. Unlike an informal agreement a contract is legally binding which means the law provides a remedy in the event the contract is not fulfilled. A contract can be oral or written.
There are three requirements that must be met for a contract to be considered legally binding:
- Capacity: You must be of the age of majority and you can’t be physically or mentally incompetent.
- Mutual Assent: There must be a “meeting of the minds” which means that the parties to the contract must be in agreement about the terms to the transaction. If someone offers you something in exchange for something else and you both agree, you have come to a “meeting of the minds.”
- Consideration: Consideration means one party receives something in exchange of services or goods. Consideration can be money, goods, a promise to do something…something you promise to give the other party to the contract in exchange for their services or goods.
Breaching a Legally Binding Contract:
When a contract is not fulfilled by one party or the other to the contract the contract has been “breached.” There will be legal remedies and most commonly monetary compensation is awarded the injured party to the contract.
The most common form of compensation sought for a breach of contract is "compensatory damages," which is an estimation of the loss incurred or the gain prevented, by the other party's failure to honor the contract. Compensatory damages may include the projected loss of profits by a business due to a breach of contract.
Applying Contract Law to Divorce:
Marriage is a legally binding contract. You buy a marriage license from the state when you enter into the contract. You orally agree to “Love, Honor and Obey,” until “Death do You Part.” When you enter into a marriage you have a written contract (marriage license) and a verbal contract (wedding vows).
In a marriage contract you also have all the “requirements” of a legal contract. Both parties to the marriage have the “capacity” to enter into the contract. There is a “meeting of the minds” when you agree to marry each other. There is a promise of consideration in the way of love, honor and cherish in exchange for the same from the other party.
Below are a few of the pros for applying contract law to divorce:
- The party breaching the marital contract would be sanctioned. The party left behind would not be left to suffer any financial repercussions.
- Any party breaching the marital contract due to infidelity would not be able to collect alimony or other compensation.
- There is no long drawn out divorce settlement negotiation since the person breaching the contract would no longer have any “http://divorcesupport.about.com/od/propertydistribution/f/equit_distrib.htmequitable rights” to marital assets.
Why is divorce...the dissolution of a marriage not treated the same as the dissolution of a contract between companies? Because the Family Court System has removed the idea of morality and behaving in a moral way from the marriage contract. I've been told that "morality" can't be legislated which is not true. Morality can't be forced, a person is going to behave the way they want to behave BUT sanctions for bad behavior can be legislated.
Under contract law breach of contract leaves the nonperforming or improperly performing party open to a claim for damages by the other party...sounds like legislated morality to me. Person A behaves according to the agreement with person B or he/she will be penalized.
No-fault divorce laws concern themselves with the rights of one person, not the family but one person in the family over the rights of the entire family. Unlike contract law, which seems to favor the rights of the one who stands by the contract over the rights of the other who breaches the contract.
How does marriage became important again, as important as the contract your sign with your real estate agent? Important enough to be viewed as a legally binding contract by the court? When states start passing laws that reflect the holiness and sanctity of marriage. Family laws should express a special interest in encouraging, supporting and protecting the marital contract, the relationship of the parties to the marriage and the children born of the marriage.
