Fault divorce, a process requiring one spouse to prove the other’s misconduct as grounds for dissolving a marriage, has undergone a significant transformation in Wisconsin.

The Origins of Fault

The concept of fault divorce dates back to English common law.

In the early 18th century, after the Duke of Norfolk divorced, Parliament created a legal system whereby a husband could petition for divorce on the grounds of adultery (only) and a wife could petition on grounds of adultery with cruelty or bigamy.¹

This idea of divorce based on fault influenced early legal systems in the United States. Many early proposed divorce laws were premised on the idea that, since marriage was a moral and legal contract, its dissolution required evidence of severe misconduct by one party.

In 1866, however, 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 divorce process.²

Fault in the ’40s and Reform in the ’50s

By the start of World War II, divorce law in Wisconsin had undergone a sea change.

Wis. Stat. section 247 (the precursor to Wis. Stat. section 767) now provided for three types of divorce in Wisconsin:

• divorce from contract;

• divorce from bed and board; and

• divorce from bond.³

While the intricacies of each maybe interesting now from a historical point of view, suffice it to say that each type of divorce required that some form of fault to be proven – such as adultery, impotency, imprisonment, desertion, cruel and inhuman treatment, habitual drunkenness, or neglect – unless the parties had spent five years living apart. In this situation, the divorce could be granted without proof of fault.

There were also slightly different burdens for a husband and a wife that matched the social views of the time. In Gray v. Gray,⁴ for example, the Supreme Court noted that the husband had the right to select where the family should reside, and if the wife refused to move with him, her conduct constituted willful desertion and she forfeited her right to receive support from him or bring an action for support while they were living apart (practice pointer: don’t ever cite this case).

For practitioners in the 21^st century, it’s hard to envision a divorce trial where one side would have to prove fault, particularly where the other side denies it. That would certainly make for more interesting placement exchanges around the holidays.

By the mid-1950s an additional ground was added, so that a divorce could be granted on a complaint of a wife alleging that the husband, being of sufficient ability, refused or neglected to provide for her.⁵ By then, divorce from contract and divorce from bed and board had been merged into once subsection.

By 1960, the sub-species of divorce from contract and divorce from bed and board had been recast as simply “divorce or legal separation,” but the grounds requiring fault remained largely unchanged.⁶

Swing in the ’70s and AB 100

The late 1970s brought big changes to Wisconsin jurisprudence, not the least of which was the elimination of fault divorce from Wis. Stat. section 247.

Although commitment for a mental illness had been added as a ground for divorce in the early ’70s, 1977 saw the introduction of Assembly Bill 100, which declared that

it is the intent of the legislature to emphasize the present and future needs of the parties to actions affecting marriage and their children, if any; to move away from assigning blame for a marriage failure; and to promote the settlement of financial and custodial issues in a way which will meet the real needs of all concerned persons as nearly as possible.⁷ (Emphasis added.)

With its publishing on Oct. 15, 1977, AB 100 became law. Wis. Stat. section 247.07 was repealed and recreated to provide that the only ground for divorce in Wisconsin was the now familiar finding that the marriage is irretrievably broken.⁸ With that, the pendulum of fault in Wisconsin family law had swung back to near where it had been some 100 years earlier.

A family law system where fault is the driving factor, while perhaps reflecting moral and cultural values of society at a point in time, makes marital conflict worse and subjects private matters to public scrutiny. It was a big step forward when the Wisconsin Legislature recognized that moving away from assigning blame in divorce met the needs of modern society.

While that change benefited all family law litigants and their children, there was particular benefit to economically dependent spouses who would struggle to meet the evidentiary burden for proving up – among all the other issues in a divorce – fault.

Forecast for the Future

Much has appeared in national media recently about a potential swing away from no-fault divorce. Just as the moral and cultural mores of the late 1800s gave way to the “Roaring ’20s” which gave way to the austerity of the ’30s and then gave way to the counterculture of the ’60s, and so on and so on, the arc of the law, likewise, continues to evolve.

This evolution toward and then away from assessing blame in family law underscores the importance of balancing legal principles with practical realities in an ever-changing society. If the past is truly prologue, as legal practitioners in this modern era, we would do well to remember where the law has been, so that we can consider what is to come.

This article was originally published on the State Bar of Wisconsin’s Family Law Section Blog. Visit the State Bar sections or the Family Law Section web pages to learn more about the benefits of section membership.

Endnotes

¹ Sybil Wolfram, “Divorce in England 1700-1857,” Oxford Journal of Legal Studies 5, No.2 (1985).

² Joseph A. Ranney, Traditional Values and No-Fault Divorce, wicourts.gov.

³ See Wis. Stat. § 247.07-.09 (1941-42).

⁴ Gray v. Gray, 232 Wis. 400, 287 N.W. 708 (1939).

⁵ Wis. Stat. § 247.07(8) (1957-58).

⁶ See Wis. Stat. § 247.07 (1961-62).

⁷ 1977 Assembly Bill 100, Section 1 (1).

⁸ See Wis. Stat. § 247.07(2) (1977-78).