Divorce, like marriage itself, is a controversial topic. For most of American history, only fault divorce was recognized, a concept based in a religious conception of marriage. If marriage is truly a divinely consecrated union, then there should be a very high bar to terminating such a union, or so the thinking goes. As free will, rather than divine ordination, has come to be recognized as the basis for marriage, many states have moved away from fault divorce.
History
Marriage, as it has traditionally been conceived, was supposed to be forever. Hence, the phrase, "Til death do us part." The Catholic Church, at one time the dominant religious and political institute of Europe, has never recognized divorce. Protestant faiths, consistent with Roman and other Near East cultures, recognized that a marriage could be terminated under certain circumstances--particular faults in a spouse that were fatal to the marriage. When the British legal system became the dominant mold for American jurisprudence, this concept of fault as the only grounds for divorce was inherited.
Grounds for Divorce
Each state in the U.S. has the power to recognize its own grounds for divorce. But because the concept of fault divorce in America traces from a common cultural and political lineage, the fault grounds recognized throughout the country's history are very similar. Going back to biblical times, adultery has been recognized as legitimate grounds for terminating an otherwise valid marriage. Modernly, other fault grounds include impotence, abandonment, inhuman cruelty or abuse, permanent insanity, habitual intoxication and incarceration for more than a year or for infamous crimes.
Preventing Divorce
Until the 1970s, divorce could not be obtained in the United States without filing on the grounds of some fault in the spouse. One adverse effect of making divorce an adversarial process is that one spouse has to prove in court a specific fault in the other and a spouse that could mount a superior legal effort could prevent divorce by preventing the other from proving the fault. This ability to prevent a divorce often resulted in a spouse being stuck in an unwanted marriage simply because she could not meet particular legal hurdles.
Legal Fictions
Another perverse side effect of the fault divorce system was that marriages where both spouses wanted divorce could not be terminated if the legal grounds were not satisfied. In these situations some spouses were forced to craft delicate legal fictions to substantiate the grounds. For example, the spouses might stage an affair to generate "proof" of adultery. While divorce itself carried a greater stigma during this period, the fact that one spouse had to have a fault proven against them only increased the burden of the process. Furthermore, the spouse considered legally responsible for causing the divorce by fault can have this held against him in the division of property or awarding of child custody.
No-Fault Divorce
In 1969, California became the first state to abolish the fault divorce and create a no-fault process. In that state, if either spouse believes irreconcilable differences make the marriage untenable, the grounds for divorce are satisfied. Unlike in fault divorce, the court does not require proof of the differences. As a result, it's essentially impossible to prevent a no-fault divorce from occurring, once filed, without a true reconciliation. Most states have since adopted some variation of the no-fault divorce, some requiring up to a year of physical separation before a unilateral no-fault divorce can be filed. Many have retained fault and no-fault divorce options.
