Marriage as we know it in America is undergoing rigorous re-examination and even hostile attack in the last third of the twentieth century in part because of the doubt expressed in some quarters that this venerable institution meets the psychological and sociological needs of the mass of men and women. And since, as one wag has put it, marriage is the "cause" of divorce, one can expect great ferment in the area of divorce law as well. Such is in fact the case. The legislatures, the prime source of divorce law, after a period of neglect sometimes going back to the revolutionary period, are beginning to explore and occasionally enact legislation which is moving the law from quasi-tort (fault) theory toward a concept embracing the dissolution of a partnership when the partners are temperamentally incapable of making a success of the enterprise.
But even though change appears to be the order of the day, there is presently no real national consensus as to the form that change should take. Many legislative approaches have been suggested in an effort to modify or eliminate the fault principle. These will be explored at length in this article, and their strengths and weaknesses will be emphasized. In addition, the effects of the new legislation on the parties, the individual judges and lawyers involved, and the bar will be discussed. In the course of this discussion of the ferment in divorce law the authors have not hesitated to state their own preferences and their reasons therefor.
For the discussion of new legislative approaches to divorce to be meaningful to the reader unfamiliar with divorce law, an historical and contemporary matrix is provided.
Harvey L. Zuckman & William Fox, The Ferment in Divorce Legislation, 12 J. FAM. L. 515 (1973).