Why Michigan Abandoned "Fault" Divorce

Until January 1, 1972, MCLA 552.6 had provided as follows:

A divorce from the bonds of matrimony may be decreed by the circuit court of the county where the parties, or 1 of them, reside, or by the court of chancery, on the application by petition, or bill of the aggrieved party, in either of the following cases:

1. Whenever adultery has been committed by any husband or wife;

2. When 1 of the parties was physically incompetent at the time of the marriage;

3. When 1 of the parties has been sentenced to imprisonment in any prison, jail or house of correction for 3 years or more, and no pardon granted to the party so sentenced, after a divorce for that cause, shall restore such party to his or her conjugal rights;

4. When either party shall desert the other for the term of 2 years;

5. When the husband or wife shall have become an habitual drunkard;

6. And the circuit courts may, in their discretion, upon application, as in other cases, divorce from the bonds of matrimony any party who is a resident of this state, and whose husband or wife shall have obtained a divorce in any other state.

3 Comp.Laws 1929, § 12732, Stat.Ann. § 25.90 had provided that “no divorce shall be decreed in any case where the party complaining shall be guilty of the same crime or misconduct charged against the respondent.” See Trombley v. Trombley, 313 Mich. 80 (1945). It became challenging indeed to determine “fault” in he said/she said cases and further to determine if the responding spouse was equally at fault for the breakdown in the marriage.

In Legatski v Legatski, 230 Mich 186 (1925), the facts showed cruelty on both sides:

The defendant had a daughter Gretchen, by his former marriage. She was married but lost her husband by death, and came back to her father's house, where she resided for about six months. She says that she never liked her stepmother. At any rate, the two women did
not get along well together, and the defendant was compelled to ask his daughter to find another home. He says that his wife's attitude in this matter was cruelty. But he retaliated by ordering the plaintiff's son to leave. It was quite likely that the plaintiff was as much grieved by his attitude towards her son as he was by her attitude towards his daughter. He always hit back. We are convinced from our examination of this record that both parties were to blame for the troubles which arose during their married life. It matters not which was more in fault, for there is no law of comparative cruelty in divorce cases. If both parties were guilty of extreme cruelty, neither should be granted a decree for divorce.
Kellogg v. Kellogg, 171 Mich. 519, 137 N. W. 249; Hatfield v. Hatfield, 213 Mich. 368, 181 N. W. 968.

In Kellogg v Kellogg, 171 Mich 518 (1912), the Court made it clear that the clean hands doctrine applies to a divorce:

As was well said by Justice Cooley in Hoff v. Hoff, 48 Mich. at page 282, 12 N. W. at page 160: ‘A proper administration of justice does not require that courts shall occupy their time, and the time of the people who are so unfortunate as to be witnesses, to the misdoings of others in giving equitable relief to parties who have no equities. And it is as true of divorce cases as of any others that a party must come into a court of equity with clean hands. Divorce laws are made to give relief to the innocent, not to the guilty.’

In the instant case both parties are complainants, hence the doctrine applies that the complainant in a bill for divorce should be free from fault. Divorce is a remedy for the innocent as against the guilty, and should not be granted where both parties are at fault.

This is no more than the application of the equitable rule that one who invokes the aid of a court must come into it with a clear conscience and clean hands. Divorce is a remedy for the innocent and injured and the complainant who has himself broken the marriage contract cannot well ask to be relieved from its obligations because his spouse may also have broken it. The law is for the assistance of those who obey it, and not for those who violate it, and, where two parties are both in the same wrong, the court helps neither.

Balanced against the clean hands doctrine was the doctrine of comparative fault that developed. See Jaikins v Jaikins, 370 Mich. 488 (1963); see also Boter v Boter, 338 Mich. 187 (1953).

Condonation was another “defense” under fault-based divorce law. In Creech v Creech, 126 Mich. 267 (1901), the Court discussed that defense:

The claim that condoned causes for divorce can only be revived by new misconduct constituting a cause for divorce is not sustained by the authorities. See 9 Am. & Eng. Enc. Law, 826, and notes. Bishop says: ‘All condonation, especially the implied, is upon the condition both that the offense shall not be repeated, and likewise that continually afterwards the party forgiven shall treat the other with conjugal kindness; whereupon a breach of the condition revives the original right of divorce.’ 2 Bish. Mar. & Div. §§ 308, 309, and notes; Tackaberry v. Tackaberry, 101 Mich. 102, 59 N. W. 400. We are not fully satisfied that the condonation was proved. While the complainant returned to defendant's abode, the defendant alleges a refusal upon her part to cohabit with him; and his counsel urge that she has not, on that account, come into equity with clean hands, inasmuch as she has refused to carry out her agreement. But this is treating condonation as a matter of
strict contract. It is more properly a question of whether the facts warrant the presumption that there was forgiveness, reconciliation, and reunion, and restoration of all marital rights. See Bish. Mar. & Div. § 271, and note; Keats v. Keats, 1 Swab. & T. 334; 9 Am. & Eng. Enc. Law, 822, and note.

In Creech, the court was asked to determine whether the alleged mental cruelty occurred before or after the condonation. Since the court held that the conduct occurred after the condonation, the wife was entitled to the divorce.

Forgiveness is another word for condonation, and this principle is evident in this passage from Farley v Farley, 278 Mich 361 (1936):

Two or three days after the last Reed affair and the subsequent filing of the bill of complaint, the parties met by chance at their home. A conversation took place between them about which plaintiff testified: ‘As to what she told me, she took the Bible in her hand, she told me she had time to think matters over and she was very sorry it happened; she was going to be a good and dutiful wife to me, and she was going to do everything, she wasn't going out unless it was with me. * * * When I talked with her on Prospect that Saturday afternoon, she did not tell me she had any relations with Mr. Reed, that was all understood.’

The next day, after considerable more discussion, the husband and wife, feeling that they ‘would have a better chance to get along and be happy’ if away from their respective families, decided to take a trip together for the purpose of seeking a new home and place of business in another city. They went to Grand Haven, Battle Creek, and Kalamazoo, and spent two or three nights in Lansing during which marital relations were resumed. On cross-examination, plaintiff testified that at the time he was in Lansing he knew as much about his wife's previous wrongdoings as he did when he filed his subsequent supplemental bill for divorce, that he was willing to give her another chance, that by his
actions he did forgive her, that they did have sexual relations, and that he did know the contents of a telegram from his wife to her attorney, instructing the latter to cancel the case, because a reconciliation had been effected.

Immediately upon his return from this trip, plaintiff met his daughter, who informed him that she had learned through defendant's son-in-law, Gordon Gay, that Mrs. Farley had conceived the idea of taking the trip with plaintiff in order to effect a condonation and thereby preclude plaintiff from basing a divorce bill on the wife's past actions. The next day, Farley filed a supplemental bill of divorce setting up the same grounds contained in his original bill, together with additions, which stated that defendant had fraudulently induced the reconciliation to prevent plaintiff's bill of divorce being granted, that defendant had transferred certain property in bad faith and for the purpose of placing it beyond her disposal, and that defendant had broken into plaintiff's safe and removed valuable papers.

The case turns upon the question of whether condonation was effected. Speaking of the nature of condonation, this court said in Creech v. Creech, 126 Mich. 267, 85 N.W. 726: ‘But this is treating condonation as a matter of strict contract. It is more properly a question of whether the facts warrant the presumption that there was forgiveness, reconciliation, and reunion, and restoration of all marital rights.’ See 9 R.C.L. 379, § 170, et seq., and 19 C.J. 83, § 192 for general discussion of condonation.

Knowledge of the offense or offenses forgiven is essential to condonation, but where the offender is guilty of many offenses of a similar and equally culpable character, a knowledge of such plural offenses or enough of them to illustrate the voluntary character of the act of forgiveness is sufficient.

‘The rule requiring full knowledge is not to be understood as meaning absolute knowledge. While there can be no condonation without knowledge that the offense was probably committed, it is sufficient as a basis for a condonation that the non-offending spouse had such knowledge as would satisfy a reasonably prudent person that the offense had been committed, giving full weight to the trust and confidence which husband and wife are entitled to place in each other.’ 9 R.C.L. 382, § 174.

The record shows that plaintiff had specific knowledge of most of his wife's wrongdoings, and sufficient information of others to lead a reasonably prudent man to believe that all was not as it should be. He cannot complain that he was ignorant of his wife's indiscretions.

In Chase v Chase, 332 Mich 439 (1952), a husband filed a complaint for divorce after his wife had left the home with two children. The wife had left, in part, because the marital home had no bathroom. The court opined:

The law does not permit courts to sever the marriage bond and to break up households, merely because parties, from unruly tempers or mutual wranglings, live unhappily together. It requires them to submit to the ordinary consequences of human infirmities, and of unwise selections, and the misconduct which will form a good ground for a legal separation must be very serious, and such as amounts to extreme cruelty, entirely subverting the family relations by rendering the association intolerable.” Brewer v. Brewer, 295 Mich. 370, 294 N.W. 715, 716.

Because the husband had not adequately proven fault, the court denied the divorce but did grant the wife’s counter-claim for separate maintenance.
In Kull v Losch, 328 Mich 519 (1950), the court noted that collusion was also illegal in the days of fault-based divorce:

Agreements not to defend or to abandon a defense in a divorce action, to destroy or conceal evidence in proceedings for divorce, and to procure or furnish testimony of certain facts which will successfully support or defeat a divorce action, or which provide that payment to the party procuring evidence to be used in such an action is contingent upon the result of the action, have been held void as parts of collusive arrangements to facilitate divorce.

It had become common for spouses wanting to divorce to have one party allege fault, and the other party not to contest it, which was considered to be a fraud on the court.

Not only were there required “grounds” for divorce, but there were special rules if the parties had minor children. Pursuant to C.L.1948, § 552.9, the court would enter what it called an “interlocutory decree” of divorce that then became effective six months after the decree was entered unless the court ruled otherwise:

In every case wherein there are dependant minor children under the age of 17 years, said decree shall not become final until 6 months from and after the date said decree is entered: Provided, however, That in cases of unusual hardship or such compelling necessity as shall appeal to the conscience of the court, it may, upon petition and proper showing, make said decree effective within a shorter period.

In Linn v Linn, 341 Mich 668 (1955), the husband wanted to vacate the final judgment because his wife had become pregnant (by someone else) during the six month period following the interlocutory decree. The court did, in fact, set aside the divorce decree and noted:

From the cases cited it clearly appears that if parties to an interlocutory decree of divorce resume marital relations, but conceal such fact from the court and allow the decree to become final, such decree may be set aside on the ground that it was procured by a fraud on the court. Consistently with the prior decisions in this State, we think that a like result must follow where the fraudulent concealment relates to immoral conduct, on the part of the one to whom the decree is granted, of such nature as to justify and require the setting aside of the interlocutory decree before it becomes final or to deny finality to it. In either event the dissolution of the marital relation has been obtained by fraud on the court and perhaps, as in the case at bar, on the opposite party in the divorce action. We cannot accept the theory that, if the spouse to whom the interlocutory decree is granted indulges in immoral misconduct of such character that it would, if known, constitute a bar to the granting of a final decree of divorce, the court on which the fraud is practiced is powerless to set aside the decree after it has become final.

The Linn court noted that a final decree can be set aside if the parties themselves cohabit during the six month period or if the plaintiff commits adultery.

“Recrimination” was another defense to divorce in Michigan under prior law. In Sovereign v Sovereign, 347 Mich. 205 (1956), the husband asserted recrimination as a defense, and the court noted:

We think the defendant, in his brief, properly sets up the requirements for invoking the doctrine of recrimination as being (1) that the misconduct relied upon by way of recrimination constitutes a legal cause for divorce; (2) that it be an actual cause of the marital discord; and (3) that the misconduct complained of not be excusable as having been provoked or brought about by the party asserting the plea.

The facts in the Sovereign case were notable:

Plaintiff filed her bill for divorce charging defendant with extreme cruelty in that he neglected her, was constantly away from home and plaintiff, refused to join her in social life and developed an unusual peculiarity in his home life which caused plaintiff to suffer nervous breakdowns. With respect to the latter charge, she claimed, in effect, that he was a sex pervert, given to inflicting abnormal sexual practices on her. The court found plaintiff's charges in that connection true. Defendant filed a cross-bill charging plaintiff with extreme cruelty and adultery. The court, while declining to find plaintiff guilty of adultery, did find her guilty of an infatuation and continual misconduct and indiscretions in associations with another man. The court concluded that while both parties were guilty of extreme and repeated cruelty which caused their marital troubles, conduct constituting ample grounds for divorce, the acts committed by defendant were of a less serious kind and nature than those committed by plaintiff and that, therefore, defendant was entitled to
and he was granted a divorce.

While the court granted a divorce, the divorce was granted to the husband and not the wife. The wife appealed, asking that she be the one who was granted the divorce. The Supreme Court denied a divorce to either party, holding:

Applied here, defendant's conduct, found as a matter of fact by the court, constituted legal grounds for divorce, was an actual cause of the marital discord and was not excusable as having been provoked or brought on by plaintiff. The misconduct of both related to their sex life, was of a kind, and that of plaintiff may have been occasioned, in a measure, by that of defendant. Under such circumstances the statute and former decisions of this Court stand as a barrier to awarding a decree of divorce to him.

Recrimination was a defense based on provocation of wrongful acts by the other party, and Sovereign is an example of how that defense could be used.

Connivance was yet another defense. That refers to what might also be characterized as a conspiracy to induce conduct that would result in grounds for divorce. In Herrick v Herrick, 31 Mich 298 (1875), the court found that a husband actually knew of his wife’s adultery and came close to conniving with the third party:

We have also been strongly impressed by a multitude of circumstances, that the complainant not only knew of the whole relations between his wife and Andrew, but was quite willing that they should unite their futures, if he did not actually connive at and further the conduct of Andrew. We place no reliance on Andrew's testimony, but the testimony of complainants' witnesses renders it probable, if not certain, that he and Andrew had an understanding. It is difficult to account for his conduct otherwise.

The facts are too disgusting to dwell on, and the conduct of defendant shows her in a very bad light, but we do not think the complainant shows himself entitled to ask a divorce, or that he has proved the only well pleaded charges, which he must have originally made on
definite information as to time and place, if made in good faith. It must be presumed this would have been given in evidence as far as it was reliable or plausible; but the proofs are very much at large.

The husband in that case first sued for divorce based on alleged cruelty but then amended his complaint to allege adultery. Because the court found that he knew of the adultery and almost encouraged it, he was not entitled to a divorce.

Insanity troubled the courts when fault was required to divorce. In Gardner v. Gardner, 239 Mich. 306 (1927), the court held:

“The broad rule has been laid down that a spouse who is insane cannot be guilty of conduct that will constitute a cause for divorce in favor of the other, for the reason that he or she is incapable of intentionally doing or committing an act that will constitute a ground for divorce.” 9 R. C. L. p. 324, § 99.

“While a divorce will not be granted for acts committed during insanity, a divorce may be obtained for acts happening prior thereto, notwithstanding the subsequent insanity.” 2 Schouler, Marriage and Divorce, p. 1880, § 1679.

“Mental irresponsibility, however, is not available as a defense to cruelty if the defendant was capable of fully comprehending and understanding the wrongs he was committing.” 9 R. C. L. p. 334, § 113.

If a spouse is insane and cannot be held liable for cruelty committed while insane, then the other spouse may not be able to leave the marriage. If the insane spouse files, however, then that ordinarily must be done through a guardian ad litem. Berg v Berg, 336 Mich 284 (1953); Frieseke v Frieseke, 138 Mich 458 (1904). While a GAL would represent an insane spouse seeking a divorce, presumably the same grounds of fault would be required.

Laches was also asserted in the days of fault-based divorce if the fault occurred years before the complaint for divorce was filed. In Stuart v Stuart, 47 Mich 566 (1882), the facts were described as follows:

This suit is instituted to obtain a divorce for the cause of adultery. The adultery is charged to have been committed with one Baum in the year 1865, and with one Buchanan in the year 1876. Of the commission of adultery with Baum there is very positive evidence from Baum himself, with strong corroborative circumstances and partial confessions proved by others. But the bill was not filed until after a lapse of twelve years, during which time the parties had cohabited together as husband and wife, and this great delay obviously calls for some explanation.

Because the allegation was so stale, the appellate court reversed the judgment of divorce. With the passage of MCLA 552.6 as amended and effective January 1, 1972, the age of “nofault” divorce began. MCLA 552.6 now provides as follows:

(1) A complaint for divorce may be filed in the circuit court upon the allegation that there has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved. In the complaint the plaintiff shall make no other explanation of the grounds for divorce than by the use of the statutory language.

(2) The defendant, by answer, may either admit the grounds for divorce alleged or deny them without further explanation. An admission by the defendant of the grounds for divorce may be considered by the court but is not binding on the court's determination.

(3) The court shall enter a judgment dissolving the bonds of matrimony if evidence is presented in open court that there has been a breakdown in the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.

It is clear from the cases that were decided prior to 1972 that people could be trapped in unhappy marriages for years. “Defendants” were stigmatized as the “wrongdoers” in the marriage. Parties had no choice but to detail the “fault for the breakdown” and defenses to those accusations. If a husband had an affair or was abusive, there were grounds for the woman to obtain a divorce under earlier law. The problem was that society then stigmatized the woman as a “divorcee,” and women were often left with inadequate income to support themselves and their families. In short, there were disincentives for women to divorce prior to 1972 even if they had grounds to divorce.

At the same time that divorce law was changing, men were increasingly interested in parenting their children after divorce. The Child Custody Act of 1970, MCLA 722.21 et seq. repealed the preference for mothers of children under the age of 12. See MCLA 722.541 (repealed by MCLA 722.29). Over time, men were granted more and more parenting time, and courts awarded joint legal custody in a majority of the cases. The point is that requiring parents to duke it out in a contested divorce compromised their ability to work cooperatively to raise their children after the divorce, and this fact was not lost on the courts.

Some people are starting to consider the re-introduction of a fault-based divorce system as a way to stemming divorce. The problem is that if divorce becomes more difficult to obtain, children may be trapped in untenable situations—which will affect their development and potential. Certainly anyone considering a retreat to an earlier day should survey the cases that were decided then.