Whose Fault Was No-Fault Divorce?

The Story behind America’s Most Enduring Oxymoron When language aficionado Bo Mitchell judged 461 entries for the “Great Oxymoron Contest” in 1983, he ranked “wedded bliss” in third place. In fourteenth place came “happily married.” Mitchell distinguished two kinds of oxymorons: “linguistic oxymorons, which contain two words with opposite or conflicting meanings” (such as, “Positively no!” or “pretty ugly”) and “sociological oxymorons, which wryly comment on various stereotypes” (such as “military intelligence” or “honest politician”). A generation earlier, it is doubtful that Americans would so readily have considered “wedded bliss” or “happily married” as sociological oxymorons; those sentiments had been sincere, not self-contradictory, in the 1950s. During the late 1960s and early 1970s, however, a momentous series of events transformed the public rapport of marriage dramatically: the institution no longer would be associated with lifelong happiness, except in jest. What had brought about this change in expectations? Much of the answer may be discovered by unpacking the history behind another oxymoron that Mitchell placed near the top of his list: “no-fault divorce.”[1] Prior to the California Family Law Act of 1969, divorce across the fifty states required an adversarial procedure. A plaintiff filed for divorce, alleging specific faults by the other spouse, who was named as the defendant. The clerk called the case Doe v. Doe, indicating one spouse “versus” the other. Only upon evidence of statutory grounds for fault—such as adultery, desertion, or cruelty—did the court decide in favor of the plaintiff and grant a decree of divorce. As other states followed California’s lead through the 1970s, fault vanished from the proceedings, and so did the other contextual clues as to the real meaning of “divorce”: the plaintiff became a petitioner, the defendant became a respondent, the case was renamed I
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