Until 1974, when the legislature enacted irretrievable breakdown as grounds for divorce via Massachusetts General Laws, Chapter 208, Sections 1A and 1B, in order to secure a divorce in Massachusetts fault had to be alleged and proved in court. The basic grounds that were listed and still are listed in section 1 of Massachusetts General Laws, Chapter 208, included: adultery, cruel and abusive treatment, gross and confirmed habits of intoxication and desertion. Prior to 1974, the most frequent ground that was used for divorce was cruel and abusive treatment; that is, intentional actions designed to cause pain to the other party. Prior to the advent of the grounds of no fault, divorce litigation was often consumed with anecdotes testified by clients and witnesses about instances of abuse, and/or testimony by clients and private investigators about instances of adultery. The important issues about the custody of the children, the appropriate parenting plan, the division of property, and the amount and duration of support were sublimated to the garishness of sordid accusations.
With the passage of the no fault divorce provisions, parties could file for divorce, if one of them or both of them believed that the marriage was over. If both of them believed the marriage was over, the parties could execute an affidavit to that effect and a comprehensive agreement. If one of them believed that the marriage was over, a simple recital in the complaint that the marriage was irretrievably broken down was sufficient.
At the same time that irretrievable breakdown became a basis for divorce, the legislature enacted section 34 of Chapter 208 of the Massachusetts General Laws. Section 34 became the engine of modern divorce law dealing with those elements that a judge must consider in making an equitable of division of property and an order for alimony. Lest one of the parties might feel deprived by not including the seedy elements of the marriage in their testimony, the legislature included “conduct of the parties during the marriage” as an element for consideration. Thus it was still possible to inject that fault piece for the court to consider.
As we became more accustomed to working with section 34, and the mores of society appeared to change. Conduct that became relevant for the court to consider was not who was sleeping with whom. Rather, the focus was on economic misconduct: the use or abuse of assets by one of the parties during the marriage, depriving the other party of those assets. Such evidence would be relevant in a divorce trial to allow the judge to include in the marital estate the value of those assets taken by one of the parties and therefore ordering a disparate division of property to the benefit of the non-offending party.
The evidence of marital infidelity, obtained sometimes by subpoenaing the paramour to testify at trial to the great embarrassment of all concerned and to reap vengeance upon the offending spouse went the way of all flesh. That is not to say that some lawyers still will put on that kind of performance, but when I am asked by a client if we should invest funds by retaining an investigator, most of the time I will steer the client away from that expensive morass. A prime consideration is that these parties were married to each other, had a life together, had children together, and the events of the children as they grow and have families of their own, will mean that the warring parties will meet again…and again. Better that they meet civilly, and not with the rancor that the divorce may have entailed.
That being the case, with the marked evolution away from fault grounds in divorce litigation as we see it in Massachusetts and in many other states, why then does the taste for blood and guts in government. Why the madness, obsession, and allure for gossip regarding General David Petraeus and General John Allen? Rather than dealing with the monumental task of getting our Senate and House of Representatives to work together regardless of party affiliation, why this fixation on the drama of infidelity?
I can visualize a scenario where Marc Anthony arrives on his magnificent steerage clad in his armor with a battalion of legions following him on his way to visit Cleopatra, only to be assaulted by paparazzi armed with flashing cameras and questions:
Question: Excuse me, Mr. Anthony, but is it true that you are involved in a licentious relationship with Ms. Cleopatra?
Answer: I have no comment.
Question: Mr. Anthony, is it true that the Roman Senate is convening an inquiry as to the possibility of a breach in security as a result of your sexual liaison with Cleopatra?
Answer: I am not aware of that. My attorney is handling the matter.
And into the large palace does Marc Anthony stride, leaving the salivating hordes at the doors, wanting more and more detail. Is this human nature?
In my 38 years of practicing divorce litigation, there have been many changes. One of the most significant is the move away from fault litigation. By doing so, it leaves the lawyers and the court to deal with the important issues. Could not the same lesson by learned by our Congress as yet another expedition into mindlessness occurs? Think about it…please.